Opinion
3:22-cv-00296-ART-CLB
10-11-2022
ADRIAN AGUIRRE, Plaintiff, v. ICENBERG, Defendant.
SCREENING ORDER ON FIRST AMENDED COMPLAINT
ANNE R. TRAUM, UNITED STATES DISTRICT JUDGE
Plaintiff, who is currently incarcerated in the custody of the Nevada Department of Corrections (“NDOC”), has submitted a proposed amended civil rights complaint (“FAC”) under 42 U.S.C. § 1983 and filed an application to proceed in forma pauperis. (ECF Nos. 3, 1.) The Court accepts the FAC as the operative complaint in this case. The matter of the filing fee will be temporarily deferred. The Court now screens the FAC under 28 U.S.C. § 1915A.
I. SCREENING STANDARD
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or laws of the United States, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act (PLRA), a federal court must dismiss a prisoner's claim, if “the allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id.
Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
II. SCREENING OF FAC
In the FAC, Plaintiff sues multiple Defendants for events that took place during his incarceration at Ely State Prison. (ECF No. 3 at 1.) Plaintiff sues Defendants officer Icenberg and nurse Jane Doe. (Id. at 1-2.) Plaintiff brings three counts and seeks monetary relief. (Id. at 2-7.)
The FAC alleges the following: On July 8, 2020, officer Icenberg grabbed Plaintiff's arm through the cell's food slot while retrieving a cordless phone. (Id. at 4.) Icenberg then twisted Plaintiff's fingers and put downward pressure on Plaintiff's arm, trapping his arm against the metal flap. (Id.) This caused extreme pain, and Plaintiff cried out for help. (Id.) Plaintiff had not done anything to provoke Icenberg's use of force. (Id.) Icenberg's use of force was caught on camera. (Id.)
After the incident, Plaintiff requested medical attention. (Id. at 5.) Nurse Jane Doe arrived at Plaintiff's cell and told him that he would be ok without conducting a thorough examination. (Id.) Jane Doe did not provide Plaintiff an ice pack or pain medication or perform X-rays, even though Plaintiff's arm was visually swollen, and his fingers were swollen and bruised. (Id.) Jane Doe is not a doctor and not authorized to make diagnostic decisions on injuries. (Id.) No doctor was called to evaluate Plaintiff's injuries. (Id.)
Although policy dictates that injuries should be photographed following an officer's use of force, no photographs were taken of Plaintiff's injuries. (Id. at 6.) Plaintiff initiated the grievance process, and his grievance was partially upheld and allegedly referred to the investigator general for investigation. (Id.) However, the incident was never actually investigated. (Id.) Plaintiff was told to wait until the end of the investigation to proceed with the grievance process. (Id.) When Plaintiff eventually gave up on the investigation and tried to restart the grievance process, he was told that his grievance was time-barred. (Id.)
Based on these allegations, Plaintiff brings an excessive force claim, a claim regarding inadequate medical care, and a First Amendment retaliation claim. (Id. at 4-6.) The Court construes Plaintiff claim of inadequate medical care as a claim of deliberate indifference to a serious medical need. The Court will consider these claims in turn.
A. Excessive Force
When a prison official stands accused of using excessive physical force in violation of the cruel and unusual punishment clause of the Eighth Amendment, the question turns on whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was wanton and unnecessary, it may also be proper to consider factors such as the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7. Although an inmate need not have suffered serious injury to bring an excessive force claim against a prison official, the Eighth Amendment's prohibition on cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force. Id. at 9-10.
The Court finds that Plaintiff states a colorable excessive force claim. The Court liberally construes the FAC as alleging that when Icenberg was retrieving a cordless phone through the food slot in Plaintiff's cell, Icenberg grabbed Plaintiff's arm, put downward pressure on his arm and twisted Plaintiff's fingers. Plaintiff had not done anything provoke Icenberg, and Icenberg's did not act in a good-faith effort to maintain or restore discipline. Rather, Icenberg acted maliciously and sadistically for the purpose of causing harm. These allegations are sufficient to state a colorable claim against Icenberg on screening.
B. Deliberate Indifference to a Serious Medical Need
The Eighth Amendment prohibits the imposition of cruel and unusual punishment and “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth Amendment when he acts with “deliberate indifference” to the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment violation, a plaintiff must satisfy both an objective standard-that the deprivation was serious enough to constitute cruel and unusual punishment-and a subjective standard- deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).
To establish the first prong, “the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Id. “Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (internal quotations omitted). When a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay led to further injury. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference”).
The Court finds that Plaintiff fails to state a colorable claim of deliberate indifference to a serious medical need. The allegations in the FAC are insufficient to establish that Plaintiff had a serious medical need. Plaintiff alleges that his arm and fingers were swollen and bruised. Generally, bruises and swelling do not constitute a serious medical need. See MacFalling v. Nettleton, No. CV 1702399 SVW (AFM), 2017 WL 3498616, at *7 (C.D. Cal. Aug. 15, 2017) (cuts, abrasions, and swollen hands resulting from overly tight handcuffs did not rise to level of a significant injury); Telles v. Stanislaus Cty. Sheriff's Dep't, No. 1:10-CV-01911 AWI, 2011 WL 2036962, at *5 (E.D. Cal. May 24, 2011) (cuts and bruises not serious medical need where plaintiff did not allege the severity of those injuries). Plaintiff does not allege any details about his injuries that could elevate his injuries beyond minor bruises and swelling to something that could potentially constitute a serious medical need. Plaintiff does not allege any facts that would support that the failure to provide medical treatment could have resulted in further injury or the unnecessary and wanton infliction of pain. See Jett, 439 F.3d at 1096.
Furthermore, even if the allegations supported that Plaintiff was suffering from a serious medical need, the allegations do not support that nurse Jane Doe was aware of, and deliberately indifferent to, that need. Plaintiff alleges that Jane did not do a thorough examination or provide him with an icepack or pain medication. But Plaintiff does not allege that he asked Jane Doe to take a closer look or asked Jane Doe to call a doctor because he disagreed with her assessment. Nor does he allege that he requested an icepack or pain medication or told nurse Jane Doe that he was experiencing a high level of pain. Thus, the allegations in the FAC do not support that nurse Jane Doe was aware, or had any reason to be aware, that Plaintiff had a serious medical need.
The Court finds that the allegations in the complaint do not support a claim of deliberate indifference to Plaintiff's serious medical needs. Therefore, the Court dismisses this claim without prejudice and with leave to amend.
C. First Amendment Retaliation
Prisoners have a First Amendment right to file prison grievances and to pursue civil rights litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). “Without those bedrock constitutional guarantees, inmates would be left with no viable mechanism to remedy prison injustices. And because purely retaliatory actions taken against a prisoner for having exercised those rights necessarily undermine those protections, such actions violate the Constitution quite apart from any underlying misconduct they are designed to shield.” Id.
To state a viable First Amendment retaliation claim in the prison context, a plaintiff must allege: “(1) [a]n assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Id. at 567-68. Total chilling is not required; it is enough if an official's acts would chill or silence a person of ordinary firmness from future First Amendment activities. Id. at 568-69.
The Court finds that Plaintiff fails to state a colorable First Amendment retaliation claim. As an initial matter, the Court notes that Plaintiff does not allege that either of the Defendants were involved in any retaliation. However, even if Plaintiff had named a specific individual, the only alleged retaliation is that Plaintiff's initial grievance was either not forwarded to the investigator general or not investigated by the investigator general, and that his subsequent grievances were time-barred. As such, the only adverse action against Plaintiff is that his grievances were improperly denied. The improper denial of grievance leaves Plaintiff no worse off than before he filed his grievance and is not enough to chill or silence a person of ordinary firmness form future First Amendment activities. As such, the allegations do not support a First Amendment retaliation claim.
It does not appear that amendment can correct the deficiencies in this claim. However, considering Plaintiff's pro se status, the Court will dismiss this claim without prejudice and with leave to amend. However, the Court notes that to state a colorable claim, Plaintiff must allege both a specific adverse action by a specific Defendant, and that the adverse action would be sufficient to silence a person of ordinary firmness from future First Amendment activities.
III. LEAVE TO AMEND
Plaintiff is granted leave to file a second amended complaint to cure the deficiencies of the FAC. If Plaintiff chooses to file a second amended complaint, he is advised that a second amended complaint supersedes (replaces) the original complaint, and any previously filed amended complaints, and, thus, the second amended complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal). Plaintiff's second amended complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff should file the second amended complaint on this Court's approved prisoner civil rights form, and it must be entitled “Second Amended Complaint.”
The Court notes that if Plaintiff chooses to file a second amended complaint curing the deficiencies, as outlined in this order, Plaintiff will file the second amended complaint within 30 days from the date of entry of this order. If Plaintiff chooses not to file a second amended complaint, this case will proceed only on Plaintiff's excessive force claim against Defendant Icenberg.
IV. CONCLUSION
It is therefore ordered that a decision on the application to proceed in forma pauperis (ECF No. 1) is deferred.
It is further ordered that the Court accepts the proposed first amended complaint (ECF No. 3) as the operative complaint in this case. The Clerk of the Court will file the first amended complaint and send Plaintiff a courtesy copy of the first amended complaint.
It is further ordered that Plaintiff's excessive force claim will proceed against Defendant Icenberg.
It is further ordered that Plaintiff's claim of deliberate indifference to a serious medical need is dismissed without prejudice and with leave to amend.
It is further ordered that Plaintiff's First Amendment retaliation claim is dismissed without prejudice and with leave to amend.
It is further ordered that, if Plaintiff chooses to file a second amended complaint curing the deficiencies of the FAC, as outlined in this order, Plaintiff will file the second amended complaint within 30 days from the date of entry of this order.
It is further ordered that the Clerk of the Court will send to Plaintiff the approved form for filing a § 1983 complaint and instructions for the same. If Plaintiff chooses to file a second amended complaint, he should use the approved form and he will write the words “Second Amended” above the words “Civil Rights Complaint” in the caption.
It is further ordered that, if Plaintiff chooses to file a second amended complaint, the Court will screen the second amended complaint in a separate screening order. The screening process will take several months.
It is further ordered that, if Plaintiff chooses not to file a second amended complaint curing the stated deficiencies of the FAC, this action will proceed immediately on the excessive force claim against Icenberg only.