Antonetti v. Skolnik

Full title: JOSEPH ANTONETTI, Plaintiff, v. HOWARD SKOLNIK, et al, Defendants

Court: United States District Court, D. Nevada

Date published: Oct 25, 2010

748 F. Supp. 2d 1201 (D. Nev. 2010)

Opinion

3: 10-cv-00158-ECR-RAM.

October 25, 2010.

Joseph Antonetti, Indian Springs, NV, pro se.

ORDER

EDWARD C. REED, JR., District Judge.

Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 (#1-2). The Court has screened plaintiff's civil rights complaint pursuant to 28 U.S.C. § 1915A and finds that it must be dismissed in part.

I. Screening Pursuant to 28 U.S.C. § 1915A

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. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, 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 of 1995 (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. Laboratory 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); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 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, 127 S.Ct. 1955, 1964-65 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id., see Papasan v. Allain, 478 U.S. 265, 286 (1986).

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 the Complaint

Defendants

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983.

The statute plainly requires that there be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The Ninth Circuit has held that "[a] person `subjects' another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made." Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Count I

In count one, plaintiff alleges violations of his Eighth Amendment right to be free of cruel and unusual punishment, based on deprivation of needed mental health care. He claims that he is housed in segregation/isolation, which has lead to a mental health breakdown. He claims that in five

years, he has been seen by mental health professionals at total of eight times, instead of every ninety days as required by NDOP administrative regulations. Plaintiff claims that prison mental health professionals have recommended that he pursue art and music for his mental health, but defendants have refused to provide him with the necessary drawing materials. He claims that defendants' failure to provide him with regular mental health care is a deliberate and wanton infliction of pain and demonstrates deliberate indifference. Plaintiff claims that the mental health professionals at the prison have suggested that he take anti-psychotic and anti-depression medications, which he states would not be necessary but for defendants' neglect and indifference. He further claims that he has been made to suffer bouts of aggression, extreme depression, voices, paranoia, hallucinations, emotional breakdowns and distress, unreasonable fear, and systematic dehumanization which leaves him not knowing who he is as a person or whether he is human anymore.

To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison conditions must involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347 (1981). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9^th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9^th Cir. 1982). Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may be held liable only if they acted with "deliberate indifference to a substantial risk of serious harm." Frost v. Agnos, 152 F.3d 1124, (9^th Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994). The deliberate indifference standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Farmer v. Brennan, 511 U.S. at 834 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must "know of and disregard an excessive risk to inmate health or safety." Id. at 837. Thus, "a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of harm and disregards that risk by failing to take reasonable measures to abate it." Farmer v. Brennan, 511 U.S. at 835. Prison officials may avoid liability by presenting evidence that they lacked knowledge of the risk, or by presenting evidence of a reasonable, albeit unsuccessful, response to the risk. Id. at 844-45. Mere negligence on the part of the prison official is not sufficient to establish liability, but rather, the official's conduct must have been wanton. Farmer v. Brennan, 511 U.S. at 835; Frost v. Agnose, 152 F.3d at 1128; see also Daniels v. Williams, 474 U.S. 327, 33 (1986).

The Eight Amendment's proscription against cruel and unusual punishment prohibits penalties which are grossly disproportionate to the offense. Estelle v. Gamble, 429 U.S. 97, 102 (1976). Placing a prisoner in isolation can amount to cruel and unusual punishment, depending on the particular conditions and circumstances. See Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392 (1981). The court finds that plaintiff has stated a colorable Eighth Amendment conditions of confinement claim, based on isolation.

A prisoner's claim of inadequate medical care does not constitute cruel and unusual punishment unless the mistreatment rises to the level of "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. at 106. The "deliberate indifference" standard involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must act with a "sufficiently culpable state of mind," which entails more than mere negligence, but less than conduct undertaken for the very purpose of causing harm. Farmer v. Brennan, 511 U.S. at 837. A prison official does not act in a deliberately indifferent manner unless the official "knows of and disregards an excessive risk to inmate health or safety." Id.

In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner's civil rights have been abridged, "the indifference to his medical needs must be substantial. Mere `indifference,' `negligence,' or `medical malpractice' will not support this cause of action." Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), citing Estelle, 429 U.S. at 105-06. "[A] complaint that a physician has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle v. Gamble, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin v. Smith, 974 F.2d 1050, 1050 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Even gross negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). A prisoner's mere disagreement with diagnosis or treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989).

Deliberate indifference can be manifested by prison guards intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Estelle v. Gamble, 429 U.S. at 104-05. However, where a prisoner alleges a delay in receiving medical treatment, the prisoner must allege that the delay led to further injury. McGuckin v. Smith, 974 F.2d 1050, 1060 (9^th Cir. 1992), overruled on other grounds, WMX Techs, Inc. v. Miller, 104 F.3d 1133, 1136 (9^th Cir. 1997); Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9^th Cir. 1985).

The Courts of other federal Circuits have also found deliberate indifference where prison officials ignore a previous physician's treatment plan. White v. Napoleon, 897 F.2d 103 (3^rd Cir. 1990) (finding cognizable claim for deliberate indifference where prison officials ignored private hospital's treatment orders and refused inmate's access to prescribed medication); Gill v. Mooney, 824 F.2d 192 (2nd Cir. 1987) (finding cognizable claim where prison officials refused to permit plaintiff to participate in exercise program prescribed by doctor); Eades v. Thompson, 823 F.2d 1055 (7th Cir. 1987) (finding cognizable claim where prisoner alleged that prison officials made him travel and carry a heavy box, causing a surgical incision to gape open, in violation of prior medical orders); Martinez v. Mancusi, 443 F.2d 921 (2nd Cir. 1970), cert. denied 401 U.S. 983, cited with approval by Estelle v. Gamble, 429 U.S. at 105 n. 10 (finding deliberate indifference where prison staff forced

post-surgical prisoner-patient to walk, ignoring warnings from hospital personnel that inmate should not be moved); see also Carl T. Drechsler, Annotation, Relief Under Federal Civil Rights Acts to State Prisoners Complaining of Denial of Medical Care, 28 A.L.R. Fed. 279 (1976) (recognizing that, on the whole, courts do not condone the practice of prison officials ignoring orders rendered by a prisoner's previous physician). This court finds that under the facts alleged in count one, plaintiff has stated a colorable Eighth Amendment medical care claim.

Count 2

In count two, plaintiff alleges violations of his rights under the First, Fifth, Sixth, and Fourteenth Amendments related to freedom of speech, access to the courts, and deprivation of due process and law library access. Plaintiff claims that he has been housed in segregation for several years, and has been repeatedly denied materials such as books, paper, pens, and envelopes, as well as assistance from a law clerk and help with research. Plaintiff alleges that defendants have deprived him of these things both by direct refusal and by policy. Arguing that proper law library access is required for proper and meaningful access to the courts, plaintiff argues that defendants' failures have prevented him from being properly prepared for court. He claims that as a result, his habeas corpus petitions and civil rights actions have been dismissed.

A prisoner alleging a violation of his right of access to the courts must demonstrate that he has suffered "actual injury." Lewis v. Casey, 518 U.S. 343, 349-50 (1996). The right to access the courts is limited to direct criminal appeals, habeas corpus proceedings, and civil rights actions challenging conditions of confinement. Id. at 354-55. "An inmate cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense." Id. at 351. Rather, the inmate "must go one step further and demonstrate that the library or legal assistance program hindered his efforts to pursue a legal claim." Id. The actual-injury requirement mandates that an inmate "demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded." Id. at 353. In Lewis v. Casey, the Supreme Court defined prisoners' right of access to the courts as simply the "right to bring to court a grievance." Id. at 354. The Court specifically rejected the notion that the state must enable a prisoner to "litigate effectively once in court." Id. (quoting and disclaiming language contained in Bounds v. Smith, 430 U.S. 817, 825-26 (1977)); see also Cornett v. Donovan, 51 F.3d 894, 898 (9^th Cir. 1995) (determining that prisoners' right of access to the courts is limited to the pleading stage of a civil rights action or petition for writ of habeas corpus). The court finds that under the facts alleged by plaintiff in count two, he states a colorable First Amendment access to courts claim.

Count III

In count three, plaintiff alleges a violation of the Eighth Amendment, based on the deprivation personal hygiene items and the sanitary conditions of the prison. He claims that he is regularly deprived of toilet paper and soap, and so cannot maintain personal hygiene. He states that he is allowed a shower only twice a week, and is made to strip in dirty showers, full of filth and insects. He claims that the unit in which he resides is filthy and littered with food and urine. He states that there are open sewers, and that insects and rodents are rampant. Plaintiff claims that he has suffered illness resulting from these conditions. The court finds that under the standard set forth above, plaintiff has stated a colorable Eighth Amendment claim based on conditions of confinement. See Anderson v. County of Kern, 45 F.3d 1310, 1314 (9^th Cir. 1995) (severe or prolonged exposure of prisoner to lack of sanitation can constitute an Eighth Amendment violation); Keenan v. Hall, 83 F.3d 1083, 1091 (9^th Cir. 1996), amended by 135 F.3d 1318 (9^th Cir. 1998) (indigent inmates have the right to personal hygiene items such as toothbrushes and soap).

Count IV

In count four, plaintiff alleges an Eighth Amendment violation based on lack of outside exercise. Plaintiff alleges that he is subjected to a policy which provides a minimum of five hours outside exercise per week, although the relevant administrative regulation provides for a minimum of seven hours and a controlling consent degree provides for a minimum of eight hours. Plaintiff alleges that he is routinely given only two to three hours outside exercise per week.

"Deprivation of outdoor exercise violates the Eighth Amendment rights of inmates confined to continuous and long-term segregation." Keenan v. Hall, 83 F.3d 1083, 1089 (9^th Cir. 1996) (citing Spain v. Procunier, 600 F.2d 189, 199 (9^th Cir. 1979)), amended by 135 F.3d 1318 (9^th Cir. 1998). The court finds that plaintiff has stated a colorable Eighth Amendment conditions of confinement claim, based on lack of outdoor exercise.

Count V

In count five, plaintiff alleges violations of his rights under the First and Fourteenth Amendments based on the deprivation incoming mail, without notice and without a post-deprivation remedy. Plaintiff claims that defendants have confiscated, withheld and returned mail from friends and family as well as publications from legitimate vendors.

The mere fact that prison officials open and conduct a visual inspection of a prisoner's legal correspondence does not state a claim for violation of a prisoner's constitutional rights. See Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974); Mitchell v. Dupnick, 75 F.3d 517, 523 (1996). However, prisoners have a First Amendment right to send and receive mail. Witherow v. Paff, 52 F.3d 264, 265 (9^th Cir. 1995).

An authorized, intentional deprivation of property is actionable under the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n. 13 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. Logan v. Zimmerman Brush Co., 455 U.S. at 436; Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). Authorized deprivations of property are permissible if carried out pursuant to a regulation that is reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987). The court finds that under the facts alleged, plaintiff has stated both a First Amendment claim and a Fourteenth Amendment claim based on deprivation and confiscation of incoming mail.

Count VI

Plaintiff alleges violations of his First Amendment right to send mail. He claims that under the policies and procedures at High Desert State Prison, to obtain materials for writing letters or court documents, an indigent prisoner must prove indigent status and then get on an indigent list. Plaintiff states that this process can take two to three months. Plaintiff alleges that as a result of these policies or the improper training of employees, he has been denied the ability to send both personal and legal mail. The court finds that plaintiff's allegations state a colorable First Amendment claim based on denial of the right to send mail.

Count VII

In count seven, plaintiff alleges violations of his Fifth and Fourteenth Amendment rights to equal treatment and due process. He claims that he is housed in administrative segregation at High Desert State Prison, and has never been given proper classification. He states that he has been placed in administrative segregation for an indeterminate length of time without any process, review, or rational. Plaintiff also claims that he is treated differently than other prisoners in this regard, based on his crime, race, religion, and political beliefs.

Equal protection claims arise when a charge is made that similarly situated individuals are treated differently without a rational relationship to a legitimate state purpose. See San Antonio School District v. Rodriguez, 411 U.S. 1 (1972). In order to state a § 1983 claim based on a violation of the equal protection clause of the Fourteenth Amendment, a plaintiff must allege and that defendants acted with intentional discrimination against a class of inmates which included plaintiff. Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th Cir. 1985); Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 471 (9th Cir. 1991). The court finds that the allegations in count seven state a colorable Fourteenth Amendment equal protection claim.

In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. In Sandin v. Connor, 115 S.Ct. 2293, 2300 (1995), the Supreme Court abandoned earlier case law which had held that states created protectable liberty interests by way of mandatory language in prison regulations. Id. at 2299-2300. Instead, the Court adopted an approach in which the existence of a liberty interest is determined by focusing on the nature of the deprivation. Id. In doing so, the Court held that liberty interests created by prison regulations are limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 2300. In applying this standard, the Court in Sandin held that ten days in disciplinary segregation did not constitute a deprivation in which a state might create a liberty interest. The Due Process Clause itself does not confer on inmates a liberty interest in being confined in the general prison population instead of administrative segregation. See Hewitt v. Helms, 459 U.S. 460, 466-68 (1983). However, the Sandin decision appears to leave open the question of whether, under different conditions of confinement from those found in Sandin, an inmate could have a liberty interest in freedom from confinement in administrative segregation or SHU. Thus, in determining whether the threshold test of Sandin is met, the circumstances of the particular state's prison system are relevant. Under the facts alleged in count seven, plaintiff states a colorable due process claim based on failure to provide periodic review of his classification.

Count VIII

In count eight plaintiff alleges violations of the "5^th, 8^th and 14^th Amendment rights to be free of arbitrary abuse of authority and punishment." Relying on the same facts alleged in support of count seven, plaintiff claims that he has been subjected to cruel and unusual punishment. Specifically, plaintiff claims that by being housed in administrative segregation, he is subjected to all the punitive measures placed on inmates in disciplinary segregation. These include yard restrictions, spending restrictions, movement and use of restraint restrictions and implementations, strip searches, cell searches, visiting restrictions, program restrictions, social restrictions, less food and poorer quality food, and no exercise equipment. He concludes that placement in administrative segregation amounts to punishment without due process.

The court finds that to the extent plaintiff alleges an Eighth Amendment claim, it is subsumed within the due process claim. To the extent that plaintiff alleges a due process violation, his claim is duplicative of count seven. The court will therefore dismiss count eight as duplicative.

Count IX

In count nine plaintiff alleges deprivation of property without due process in violation of the Fourth, Fifth and Fourteenth Amendments. Plaintiff claims that he has suffered a "shake down" of his cell in which various items were taken from him and deemed to be contraband. Plaintiff states that he believed these items to be authorized, and had in fact purchased the items at the prison or had been given the items by employees of the prison. Plaintiff claims that he was not notified of any rule changes and that the rules are not posted. He claims that he was told he had no right to be made aware of or obtain a copy of rules and policies/procedures or regulations. He states that he was deprived of his property, given no notice that the items were unauthorized, given disciplinary sanctions, and was forced to forfeit his own property with no post-deprivation remedy. The court finds that under the standard set forth above in connection with count five, plaintiff states a Fourteenth Amendment due process claim for intentional, authorized deprivation of property.

Count X

In count ten, plaintiff alleges violations of the Eight Amendment prohibition against cruel and unusual punishment. He states that he is housed in High Desert State Prison in administrative segregation, subject to 24 and 23 hour lockdown in a cell with a steel door. Plaintiff claims that defendants disconnected the intake vent which pulls dust and allergens from the cells. He claims that although dirty and dusty vent blow dirt into the cells, there is no circulation system pulling the dirty air out. Plaintiff further claims that the "air" is not on in the summer and the heat is not on in the winter. Plaintiff states that as a result of these conditions, he suffers cracked lips and nostrils which bleed and refuse to heal, as well as difficulty in breathing and sleeping. The court finds that under the standard set forth above in count one, plaintiff has stated an Eighth Amendment claim based on conditions of confinement.

Count XI

In count eleven, plaintiff alleges violations of his First Amendment right to free exercise of his religion. Plaintiff claims that he is a devout, practicing fundamentalist Christian and has been denied access to a priest, a place of worship, communion, confessional, and congregation with those of his faith. Plaintiff states that he has thereby been denied forgiveness, connection to his god and chances at atonement. Plaintiff further claims that he has been denied the kosher diet that is in accordance with his beliefs. He states that inmates who practice a wide variety of other religions are given assistance with the exercise of their religions, yet plaintiff is denied the ability to practice his, thereby putting his immortal soul in jeopardy.

The First Amendment to the United States Constitution provides that Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. U.S. Const., amend. I. The United States Supreme Court has held that prisoners retain their First Amendment rights, including the right to free exercise of religion. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). The Court has also recognized that limitations on a prisoner's free exercise rights arise from both the fact of incarceration and from valid penological objectives. Id.; McElyea v. Babbit, 833 F. 2d 196, 197 (9th Cir. 1987).

Prison regulations alleged to infringe on the religious exercise right must be evaluated under the "reasonableness" test set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987). O'Lone, 382 U.S. at 349; Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997) (recognizing that the United States Supreme Court's decision in City of Boerne v. P.F. Flores, 521 U.S. 507 (1997), invalidated the Religious Freedom Restoration Act and restored the "reasonableness test" as the applicable standard in free exercise challenges brought by prison inmates).

In determining the reasonableness of a challenged restriction on First Amendment rights, the court considers four factors. First, there must be a valid, rational connection between the prison regulation and the legitimate government interest put forward to justify it, and the governmental objective must itself be a legitimate and neutral one. A second consideration is whether alternative means of exercising the right on which the regulation impinges remain open to prison inmates. A third consideration is the impact accommodation of the asserted right will have on guards, other inmates, and the allocation of prison resources. Finally, the absence of ready alternatives is evidence

of the reasonableness of a prison regulation. Allen v. Toombs, 827 F.2d 563, 567 (9th Cir. 1987) (citing Turner v. Safley, 482 U.S. at 89-91). The court finds that under this standard, plaintiff states a colorable First Amendment free exercise claim in count eleven.

Count XII

In count twelve, plaintiff alleges violations of his Fifth Amendment right to due equal protection and due process, his Eighth Amendment right to be free of cruel and unusual punishment, and his Fourteenth Amendment right to due process, all in connection with the food provided to him by the prison.

Setting out the alleged facts in detail, Plaintiff claims that he is provided food of less nutritional value, less quality, and less caloric value than the food provided to other inmates at High Desert State Prison. Plaintiff further claims that prison officers make trays of food from dirty food carts located next to inmate showers, and that birds pick at the inmates' food while the food carts are outside. He states that the amount of food provided is inadequate and that he suffers from weight loss, lack of energy, and perpetual hunger, which he feels is a form of punishment. The court finds that count twelve states a colorable Eighth Amendment conditions of confinement claim, under the standard set forth in count one. Count twelve does not state a due process claim upon which relief can be granted.

Count XIII

In count thirteen, plaintiff alleges violations of his Fourth Amendment right to be free of unlawful searches and his Eighth Amendment right to be free of cruel and unusual punishment in connection with public and unhygienic strip searches. Plaintiff claims that whenever he is moved from his cell to any other location, he is made to stand in a brightly lit shower in full view of female employees, made to strip naked, place his bare feet on a filthy floor covered with hair, scum and insects, spread his buttocks, lift his penis, and then put his fingers in his mouth, all without any opportunity to wash his hands. Plaintiff asserts that this is entirely unnecessary, because inmates are in full restraints, escorted and solitary at all times. Plaintiff states that to avoid this "needless, filthy, dehumanizing practice," he is forced to refuse to leave his cell. He states that this has resulted in mental and physical degeneration.

Generally, strip searches do not violate the Fourth Amendment rights of prisoners. See Michenfelder v. Sumner, 860 F.2d 328, 333-34 (9^th Cir. 1988). However, strip searches that are "excessive, vindictive, harassing, or unrelated to any legitimate penological interest," may be unconstitutional. Id. at 332. The court finds that under the facts alleged, plaintiff states a colorable Fourth Amendment claim based on unreasonable searches.

Searches intended to harass may violate the Eighth Amendment. See Hudson v. Palmer, 468 U.S. 517, 530 (1984). In considering such a claim, the court must ask: 1) if the officials acted with a sufficiently culpable state of mind; and 2) if the alleged wrongdoing was objectively harmful enough to establish a constitutional violation. Hudson v. McMillan, 503, U.S. 1, 8 (1992). The court finds that under the facts alleged, plaintiff has stated a colorable Eighth Amendment claim.

Count XIV

In count fourteen, plaintiff alleges a violation of his rights under the Fourth and Eighth Amendments. He claims that officers search his cell any time he leaves his cell, and that the officers throw away personal belongings, with no notice, paperwork, or post-deprivation remedy. Prisoners have no Fourth Amendment right of privacy in their cells. See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984). Accordingly, plaintiff's Fourth Amendment claim in count fourteen based on an allegation of an unreasonable search will be dismissed for failure to state a claim upon which relief can be granted. Similarly, plaintiff's allegations do not state a colorable claim for relief under the Eighth Amendment prohibition against cruel and unusual punishment. Thus, that claim will be dismissed also. However, the court finds that under the standard set forth above in connection with count five, plaintiff states a Fourteenth Amendment due process claim for intentional, authorized deprivation of property.

Count XV

In count fifteen, plaintiff alleges violations of his Fifth and Fourteenth Amendment rights to due process and his Eighth Amendment right not to be subjected to cruel and unusual punishment. He claims that he is in segregation under no sentence, but rather is in "ad seg." He states that as a maximum custody inmate, he is subject to 24 and 23 hour lockdown for years and years. Plaintiff claims that he is denied the programs and privileges, and access to rehabilitation, social and exercise programs that other inmates are allowed and are provided by state and federal law. Plaintiff claims that although he has not suffered a disciplinary violation, he is arbitrarily kept in isolation and treated as if he were in disciplinary segregation.

The Eighth Amendment prohibits punishment which involves the unnecessary and wanton infliction of pain, is grossly disproportionate to the severity of the crime or serves no justifiable penological interest. Rhodes v. Chapman, 452 U.S. 337, 346 (1981). Isolating an inmate under circumstances that warrant discipline is not necessarily unconstitutional. Hutto v. Finney, 437 U.S. 678, 685 (1978). However, conditions of confinement which include extreme isolation and environmental deprivation can support an Eighth Amendment claim. See Madrid v. Gomez, 889 F.Supp. 1146 (1995). Accordingly, the court finds that count fifteen states a colorable Eighth Amendment claim.

In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. In Sandin v. Connor, 515 U.S. 472, 487 (1995), the Supreme Court abandoned earlier case law which had held that states created protectable liberty interests by way of mandatory language in prison regulations. Id. Instead, the Court adopted an approach in which the existence of a liberty interest is determined by focusing on the nature of the deprivation. Id. In doing so, the Court held that liberty interests created by prison regulations are limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484. The court finds that under the facts alleged in count fifteen, plaintiff states a colorable Fourteenth Amendment due process claim based on his arbitrary placement in circumstances that amount to disciplinary segregation for a period of many, many years, without a disciplinary violation.

Count XVI

In count sixteen, plaintiff alleges that he has been deprived of his Fourteenth Amendment rights to due process and equal protection, and of his Fifth Amendment right to equal protection. Plaintiff claims that he was arbitrarily classified to "max custody," based on his crime and sentence. A prisoner has no due process right to a particular classification status. Hernandez v. Johnston, 833 F.2d 1316, 1318 (9^th Cir. 1987). Thus, count sixteen does not state a due process claim for relief on which relief can be granted.

Plaintiff claims that he is treated differently than inmates with similar convictions and sentences, and that the classification system is unfair and unevenly applied. Plaintiff alleges that defendants have classified him differently, and continue to deny him reclassification based on his race, and political and religious beliefs, as well as his crime. The court finds that under the standard set forth above in count seven, plaintiff states a colorable equal protection claim.

Count XVII

In count seventeen, plaintiff alleges violations of his Eighth Amendment right to be free of cruel and unusual punishment and his Fifth Amendment right to equal protection. Plaintiff alleges that the exercise provided him at High Desert State Prison is to stand in a completely enclosed cage alone, in extreme heat or cold with no water, no shade, no exercise equipment and no urinals. He states that because of these conditions, he has suffered sunburns and cracked and bleeding lips, and a lack of any desire to exercise. Plaintiff claims that as a result, he as lost physical and mental health. He believes that this is a punishment, rather than a privilege. The court finds that under the standard set forth above in connection with count one, plaintiff states a colorable Eighth Amendment conditions of confinement claim based on the right to exercise. The court further finds that under the standard set forth in count seven, plaintiff does not state an equal protection claim in count seventeen.

Count XVIII

In count eighteen, plaintiff alleges violations of his Fifth, Eight, and Fourteenth Amendment rights to "be free of arbitrary government action" and cruel and unusual punishment, and "to receive equal treatment." Plaintiff claims that he has been made to walk great distances in restraints, causing cuts, bleeding and scaring of his ankles. He further claims that inmates have been murdered, beaten, stabbed, assaulted and brutalized while in restraints and under escort. Plaintiff states that inmates under restraint have been left helpless and unable to defend themselves, and have been walked through groups of inmates who are not restrained at all. Plaintiff claims that defendants are completely indifferent to this obvious risk and threat to inmate safety, and states that he does not want to be the next victim. The court finds that plaintiff has alleged the required deliberate indifference to a substantial risk of serious harm and so has stated a colorable Eighth Amendment claim based on conditions of confinement. The court finds that plaintiff's allegations in count eighteen do not support either an equal protection or a due process claim.

Count XIX

In count nineteen, plaintiff alleges violations of the Eighth Amendment, based on conditions of confinement. Plaintiff claims that he is forced to endure unhygienic conditions, including getting a shower only every three days in a filthy shower. The court finds that these claims are duplicative of those made in count three. Count nineteen will therefore be dismissed on that basis.

Count XX

In count twenty, plaintiff alleges violations of his Fifth and Fourteenth Amendment rights to equal protection and due process and "to be free of arbitrary use of authority." Plaintiff claims that defendants refuse to provide him with copies of institutional policies or administrative regulations. Plaintiff claims that he has served eighteen years in the Nevada Department of Prisons and that defendants' institutional policies are not in accordance with the administrative regulations and that the administrative regulations are not in accordance with the Nevada Revised Statutes and state and federal laws.

Plaintiff claims that defendants routinely add rules through institutional policies or administrative regulations which deprive inmates, needlessly and only for purposes of punishment, of privileges, various items of property, access to programs and exercise, religious services, law library access, redress of grievances and social activities. He claims that defendants have removed kites and grievances from units, denied grievances with senseless answers, made inmates wait months past the time due for responses, and then suggested that plaintiff provide proof or copies of items impossible to obtain. Plaintiff claims that defendants have refused to allow grievances to proceed to higher levels and have completely abused their positions and have impeded inmates' ability to pursue justice. Plaintiff asserts that he is suffering arbitrary abuse of authority and retaliation for pursuit of justice.

As stated above, equal protection claims arise when a charge is made that similarly situated individuals are treated differently without a rational relationship to a legitimate state purpose. See San Antonio School District v. Rodriguez, 411 U.S. at 1. Plaintiff does not make such an allegation in count twenty, thus the court concludes that count twenty does not state an equal protection claim.

Plaintiff makes several allegations concerning the grievance system at High Desert State Prison. Because prisoners have no constitutional right to an inmate grievance system, plaintiff's allegations concerning the workings of the grievance system at High Desert State Prison do not state a constitutional claim.

Plaintiff alleges that defendants refuse to provide him with copies of institutional policies and administrative regulations. The court finds that these allegations, standing alone, do not state either a equal protection or due process claim. Plaintiff, however, also alleges retaliation for his "pursuit of justice." Allegations of retaliation against a prisoner's First Amendment rights to speech or to petition the government may support a section 1983 claim. Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989). To establish a prima facie case, plaintiff must allege and show that defendants acted to retaliate for his exercise of a protected activity, and defendants' actions did not serve a legitimate penological purpose. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994); Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). A plaintiff asserting a retaliation claim must demonstrate a "but-for" causal nexus between

the alleged retaliation and plaintiff's protected activity (i.e., filing a legal action). McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979); see Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). The prisoner must submit evidence, either direct or circumstantial, to establish a link between the exercise of constitutional rights and the allegedly retaliatory action. Pratt, 65 F.3d at 806. Timing of the events surrounding the alleged retaliation may constitute circumstantial evidence of retaliatory intent. See Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir. 1989). The court finds that under the facts alleged in count twenty, plaintiff states a colorable retaliation claim.

Count XXI

In count twenty-one, plaintiff alleges that his civil rights were violated based on "wilful, intentional and deliberate infliction or physical and emotional distress." Plaintiff realleges and incorporates the facts from counts one through twenty. The court finds count twenty-one to be largely duplicative of earlier claims in the complaint, and otherwise insufficient to state a claim upon which relief can be granted. It will therefore be dismissed for failure to state a claim.

Count XXII

In count twenty-two, plaintiff alleges that his civil rights were violated based on "deliberate indifference, negligent and wanton infliction of pain." Plaintiff realleges and incorporates the facts from counts one through twenty. The court finds count twenty-two to be largely duplicative of earlier claims in the complaint, and otherwise insufficient to state a claim upon which relief can be granted.

Count XXIII

In count twenty-three, plaintiff alleges that his First Amendment right of freedom of association was violated, based on denial of visitation. He states that he was twice denied visitation with his mother, absent cause.

It is settled law that prisoners have no absolute right to unfettered visitation. Kentucky v. Dep't of Correction, v. Thompson, 490 U.S. 454, 460 (1989); Keenan v. Hall, 83 F.3d 1083, 1092 (9^th Cir. 1996). Moreover, the Supreme Court has in recent years concluded that a prisoner has a liberty interest protected by the Due Process Clause only where the restraint "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Connor, 515 U.S. 472, 483-84 (1995). Denial of visitation privileges for a matter of weeks or even months would likely not impose an atypical or significant hardship of the type that creates a liberty interest under Sandin. First Amendment associational rights are related to the freedom to associate with groups of a particular type, often political or religious in nature. See Pell v. Procunier, 417 U.S. 817, 822 (1974); Rizzo v. Dawson, 778 F.2d 527, 532 (9^th Cir. 1985). The court finds as a matter of law that the denial by prison authorities of two personal visits with his mother does not impact plaintiff's First Amendment right to freedom of association. Count twenty-three will therefore be dismissed for failure to state a claim upon which relief can be granted.

Count XXIV

In count twenty-four, plaintiff alleges that his Fifth and Fourteenth Amendment rights to equal treatment and procedural due process are violated by restitution practices at the prison. Plaintiff claims that there is no hearing, proof, receipt or review of ordered restitution. He states that he is charged with restitution, and has no idea what for. He also claims that he was ordered to pay restitution for "state sweat pants," although no such thing exists.

It is well-settled that a prisoner has a constitutionally protected property interest in his prison inmate account. Quick v. Jones, 754 F.2d 1521, 1523 (9^th Cir. 1984). An authorized, intentional deprivation of property is actionable under the Due Process Clause. See Hudson v. Palmer, 468 U.S. 517, 532, n. 13 (1984) (citing Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)). An authorized deprivation is one carried out pursuant to established state procedures, regulations, or statutes. Logan v. Zimmerman Brush Co., 455 U.S. at 436; Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). Authorized deprivations of property are permissible if carried out pursuant to a regulation that is reasonably related to a legitimate penological interest. Turner v. Safley, 482 U.S. 78, 89 (1987). The court finds that plaintiff's allegations state a colorable due process claim. The court further finds that in count twenty-four, plaintiff fails to state an equal protection claim upon which relief can be granted.

Count XXV

In count twenty-five, plaintiff alleges violations of his Fifth and Fourteenth Amendment due process rights and right to be from arbitrary exercise of authority, based on the fact that John and Jane Doe defendants have banned smoking in the Nevada Department of Corrections. Plaintiff claims that this ban was instituted arbitrarily, with intent to punish, and without any real benefit or service. Plaintiff claims that the banning of smoking has created an angry environment and a security threat, as it has created a new contraband item. He claims that inmates smuggle tobacco, and that other inmates pay $5 to $10 for a cigaret. Plaintiff claims that until the recent ban, inmates in the Nevada Department of Corrections were allowed to smoke.

In order to state a cause of action for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty interest for which the protection is sought. In Sandin v. Connor, 515 U.S. 472, 487 (1995), the Supreme Court abandoned earlier case law which had held that states created protectable liberty interests by way of mandatory language in prison regulations. Id. Instead, the Court adopted an approach in which the existence of a liberty interest is determined by focusing on the nature of the deprivation. Id. In doing so, the Court held that liberty interests created by prison regulations are limited to freedom from restraint which "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484.

The court finds that the health benefits conferred by not smoking are no longer subject to debate. Further, it is established law that housing a prisoner in an environment that exposes him to environmental tobacco smoke may support an Eighth Amendment claim. See McKinney v. Anderson, 989 F.2d 853, 853 (9^th Cir. 1992), aff'd Helling v. McKinney, 509 U.S. 25, 235 (1993). The court therefore finds that the prohibition of smoking in prisons cannot amount to an atypical and significant hardship on prisoners so as to support a due process claim. Accordingly, count twenty-five will be dismissed for failure to state a claim upon which relief can be granted.

IT IS THEREFORE ORDERED that the Clerk of the Court shall FILE the complaint. (Docket #1-2.)

IT IS FURTHER ORDERED that plaintiff's motion to for enlargement is GRANTED. (Docket #1-1.)

IT IS FURTHER ORDERED that count eight is DISMISSED as duplicative.

IT IS FURTHER ORDERED that count twelve states a colorable Eighth Amendment conditions of confinement claim. All other claims in count twelve are DISMISSED for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that count fourteen states a colorable Fourteenth Amendment due process claim for intentional, authorized deprivation of property. All other claims in count fourteen are dismissed for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that count sixteen states a colorable Fourteenth Amendment equal protection claim. All other claims in count sixteen are dismissed for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that count seventeen states a colorable Eighth Amendment conditions of confinement claim. All other claims in count seventeen are dismissed for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that count eighteen states a colorable Eighth Amendment claim based on conditions of confinement. All other claims in count eighteen are dismissed for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that count nineteen is DISMISSED as duplicative.

IT IS FURTHER ORDERED that count twenty states a colorable First Amendment retaliation claim. All other claims in count twenty are dismissed for failure to state a claim upon which relief can be granted. IT IS FURTHER ORDERED that count twenty-one is DISMISSED for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that count twenty-two is DISMISSED for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that count twenty-three is DISMISSED for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that count twenty-four states a colorable Fourteenth Amendment due process claim based on an authorized, intentional deprivation of property. All other claims in count twenty-four are dismissed for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED that count twenty-five is DISMISSED for failure to state a claim upon which relief can be granted.

IT IS FURTHER ORDERED as follows:

1. The Clerk shall electronically serve a copy of this order, including the attached Notice of Intent to Proceed with Mediation form, along with a copy of plaintiff's complaint, on the Office of the Attorney General of the State of Nevada, to the attention of Pamela Sharp.

2. The Attorney General's Office shall advise the Court within twenty-one (21) days of the date of entry of this order whether it can accept service of process for the named defendants. As to any of the named defendants for which the Attorney General's Office cannot accept service, the Office shall file, under seal, the last known address(es) of those defendant(s).

3. If service cannot be accepted for any of the named defendant(s), plaintiff shall file a motion identifying the unserved defendant(s), requesting issuance of a summons, and specifying a full name and address for said defendant(s). Plaintiff is reminded that, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, service must be accomplished within one hundred twenty (120) days of the date the complaint was filed.

4. If the Attorney General accepts service of process for any named defendant(s), such defendant(s) shall file and serve an answer or other response to the complaint within thirty (30) days following the date of the early inmate mediation. If the court declines to mediate this case, an answer or other response shall be due within thirty (30) days following the order declining mediation.

5. The parties SHALL DETACH, COMPLETE, AND FILE the attached Notice of Intent to Proceed with Mediation form on or before thirty (30) days from the date of entry of this order.

IT IS FURTHER ORDERED that henceforth, Plaintiff shall serve upon defendants or, if an appearance has been entered by counsel, upon their attorney(s), a copy of every pleading, motion or other document submitted for consideration by the court. Plaintiff shall include with the original paper submitted for filing a certificate stating the date that a true and correct copy of the document was mailed to the defendants or counsel for defendants. If counsel has entered a notice of appearance, the plaintiff shall direct service to the individual attorney named in the notice of appearance, at the address stated therein. The Court may disregard any paper received by a district judge or magistrate judge which has not been filed with the Clerk, and any paper received by a district judge, magistrate judge or the Clerk which fails to include a certificate showing proper service. NOTICE OF INTENT TO PROCEED WITH MEDIATION

______________________________________ Name ______________________________________ Prison Number (if applicable) ______________________________________ Address ______________________________________ ______________________________________ UNITED STATES DISTRICT COURT DISTRICT OF NEVADA _____________________________________, ) Case No. Plaintiff, ) ) v. ) ) ______________________________________ ) ) ______________________________________ ) Defendants. ) ______________________________________ ) This case may be referred to the District of Nevada's early inmate mediation program. The purpose of this notice is to assess the suitability of this case for mediation. Mediation is a process by which the parties meet with an impartial court-appointed mediator in an effort to bring about an expedient resolution that is satisfactory to all parties. 1. Do you wish to proceed to early mediation in this case? ____ Yes ____ No 2. If no, please state the reason(s) you do not wish to proceed with mediation? __________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ 3. List any and all cases, including the case number, that plaintiff has filed in federal or state court in the last five years and the nature of each case. (Attach additional pages if needed). ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ 4. List any and all cases, including the case number, that are currently pending or any pending grievances concerning issues or claims raised in this case. (Attach additional pages if needed). ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ 5. Are there any other comments you would like to express to the court about whether this case is suitable for mediation. You may include a brief statement as to why you believe this case is suitable for mediation. (Attach additional pages if needed). ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ This form shall be filed with the Clerk of the Court on or before twenty (20) days from the date of entry of this order. Counsel for defendants: By signing this form you are certifying to the court that you have consulted with a representative of the Nevada Department of Corrections concerning participation in mediation.

Dated this ____ day of _________________________, 2010.

______________________________________ Signature ______________________________________ Name of person who prepared or helped prepare this document