Opinion
3:22-cv-00392-ART-CLB
11-22-2022
MARC ANTHONY EARLEY, Plaintiff, v. NEVADA DEPARTMENT OF CORRECTIONS, Defendant.
SCREENING ORDER
ANNE R. TRAUM, UNITED STATES DISTRICT JUDGE.
Plaintiff, who is currently in the custody of the Nevada Department of Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983, and has filed an application to proceed in forma pauperis. (ECF Nos. 1-1, 1.) The matter of the filing fee will be temporarily deferred. The Court now screens Plaintiff's civil rights complaint 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 COMPLAINT
In the complaint, Plaintiff sues multiple Defendants for events that took place during his incarceration at Ely State Prison (“ESP”). (ECF No. 1-1 at 1.) Plaintiff sues Defendants NDOC, Ms. Cooke, Ms. Roman, and Ely Mail Room Staff. Plaintiff brings three counts and seeks injunctive and monetary relief. (Id. at 2-6.) The Court will consider Plaintiff's claims in turn.
Error! Main Document Only.The Court dismisses, with prejudice, all claims against NDOC because NDOC is an arm of the State of Nevada and is not a “person” for purposes of 42 U.S.C. § 1983.
See Doe v. Lawrence Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 1997); Black v. Nevada Dep't of Corr., 2:09-cv-2343-PMP-LRL, 2010 WL 2545760, *2 (D. Nev. June 21, 2010).
A. Count I
In Count I, Plaintiff alleges that NDOC has approved emails and e-pictures as a form of mail for inmates. (ECF No. 1-1 at 3.) Some inmates have tablet devices to read emails directly, but staff is supposed to print out all emails and deliver them to inmates together with conventional mail. (Id.) Staff at ESP only print out emails when they feel like it. (Id.) Plaintiff still has not received emails sent six months ago. (Id.) Plaintiff has a tablet to read emails, but his unit does not have a kiosk to plug the tablet into. (Id.) Staff will plug his tablet into a kiosk, but they only do so once a month, and it may take more than one plug in to download a message. (Id.) As a result, Plaintiff may go multiple months without receiving emails. (Id.)
Plaintiff has discussed this problem with warden Cooke. (Id. at 3.) She told him that she would address the issue, but it has been more than a year, and it has not been addressed. (Id.) When Plaintiff recently filed a grievance about not receiving an email, staff then delivered a copy of the email. (Id.) But Plaintiff cannot file a grievance every time staff does not deliver an email because Plaintiff may not even know whether someone has written to him. (Id.)
Based on these allegations, Plaintiff states that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights have been violated, and he brings a claim based on the failure to bring him mail. The Court liberally construes the complaint as bringing a claim pursuant to his First Amendment right to receive mail. To the extent that Plaintiff intended to bring any other claim, the Court dismisses that claim without prejudice. The Court will first discuss the standard for bringing a claim based on the right to receive mail and then consider Plaintiff's claim against each of the Defendants in turn.
Generally, prisoners have a First Amendment right to send and receive mail. Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). A regulation that impinges on First Amendment rights “is valid if it is reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The court analyzes prison regulations concerning incoming mail under the factors outlined in Turner v. Safley, 482 U.S. 78, 89 (1987). See Thornburgh v. Abbott, 490 U.S. 401, 411-13 (1989). In determining whether a prison regulation is reasonably related to a legitimate penological interest, the court should consider the following factors: (1) whether there is a valid, rational connection between the regulation and the interest used to justify the regulation; (2) whether prisoners retain alternative means of exercising the right at issue; (3) the impact the requested accommodation will have on inmates, prison staff, and prison resources generally; and (4) whether the prisoner has identified easy alternatives to the regulation which could be implemented at a minimal cost to legitimate penological interests. See Beard v. Banks, 548 U.S. 521, 529 (2006).
1. Defendant Cooke
The Court finds that Plaintiff states a colorable claim against Defendant warden Cooke. The Court liberally construes the complaint as alleging that NDOC instituted a policy under which individuals could email inmates, rather than using conventional mail, and those emails would then be printed out and delivered to inmates. Plaintiff has repeatedly informed Cooke that staff often fail to bring him his emails. Cooke has told Plaintiff that she would address the issue, but she has not actually done anything to ensure that Plaintiff receives his emails. As a result of Cooke's inaction, Plaintiff continues not to receive emails. There is no penological reason for Cooke not to enforce NDOC's policies allowing inmates to receive email. These allegations are sufficient to state a colorable claim against Cooke at this preliminary screening stage.
2. Defendant Roman
The complaint does not include any allegations about Defendant Roman. As such, the allegations do not support that Roman was in any way involved in the alleged failure to bring Plaintiff his mail. Accordingly, the complaint fails to state a colorable claim against Roman, and the Court dismisses the claim against Roman without prejudice.
3. Defendant Ely Mail Room Staff
To bring a § 1983 claim, a Plaintiff must allege “(1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person' (4) acting under color of state law.” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Plaintiff cannot bring a § 1983 claim against Defendant “Ely Mail Room Staff,” because this Defendant is not “a person.” Accordingly, the Court dismisses this Defendant with prejudice, as amendment would be futile.
The Court liberally construes the complaint as bringing a claim against John and Jane Doe who work in ESP's mailroom. The Court liberally construes the complaint as alleging that John and Jane Doe work in ESP's mailroom, and they are supposed to print out all emails to inmates. The emails are then supposed to be brought to inmates together with their regular mail. However, John and Jane Doe only print out emails when they are in the mood. When they are not in the mood, they just ignore the emails, and inmates do not receive their emails. There is no penological reason not to bring inmates their email. These allegations are sufficient to state a colorable claim at this preliminary screening stage. This claim will proceed against John and Jane Doe when Plaintiff learns their identities.
Error! Main Document Only.Although the use of “Doe” to identify a defendant is not favored, flexibility is allowed in some cases where the identity of the parties will not be known prior to filing a complaint but can subsequently be determined through discovery. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). If the true identity of any of the Doe Defendant(s) comes to light during discovery, Plaintiff may either move to substitute the true names of Doe Defendant(s) or move to amend his complaint to assert claims against the Doe Defendant(s) at that time.
B. Count II
In Count II, Plaintiff alleges that NDOC's grievance system has unfair and unrealistic rules. (ECF No. 1-1 at 4.) Inmates are only allowed to file one grievance a week. (Id.) This allows staff to break rules as often as they want because they know that inmates can only complain once a week. (Id.) Inmates are also required to file grievances within a certain timeframe, but with the one grievance per week policy, sometimes it is not impossible to file a timely grievance. (Id.) Ms. Cooke told Plaintiff that the mail issue would be fixed, but she continued to deny Plaintiff's grievances about the issue. (Id.)
Plaintiff states that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated and brings a claim based on “unfair/unreasonable rules of confinement.” The Court liberally construes the complaint as bringing a Fourteenth Amendment due process claim based on the grievance process. To the extent that Plaintiff intended to bring any other claim, the Court dismisses that claim without prejudice. The Court will now consider Plaintiff's due process claim.
A prisoner has no federal constitutional right to an effective grievance procedure. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that a prisoner has no constitutional right to an effective grievance or appeal procedure); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (an inmate has “no legitimate claim of entitlement to a grievance procedure”). As such, Plaintiff cannot state a Fourteenth Amendment due process claim on the grounds that the rules for filing grievances are unreasonable or that he was unable to effectively file grievances. The Court dismisses this claim with prejudice as amendment would be futile.
C. Count III
In Count III, Plaintiff alleges that inmates are housed on a point system. (ECF No. 1-1 at 5.) According to his points, Plaintiff is a medium custody inmate. (Id.) But Plaintiff is housed at a maximum-security prison and is being housed as a “super-max inmate.” (Id.) Staff has told Plaintiff that he's being housed as a super-max inmate because he complains and reports issues and that “they” are going to make his time in prison hell. (Id.) In December 2021, Plaintiff's unit closed, and everyone else was placed in an open tier or in a BMU unit, but Plaintiff was placed in segregation. (Id.) Plaintiff has a history with mental health disorders and being in segregation is causing him to suffer. (Id.) There is no reason to house Plaintiff as a super-max inmate. (Id.) Plaintiff had an issue with other inmates, but there are multiple prisons where Plaintiff could be safely housed. (Id.)
It is not clear to whom “they” refers. (ECF No. 1-1 at 5.)
Plaintiff states that his First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendment rights were violated, and that he is bringing a retaliation claim. The Court liberally construes the complaint as bringing a First Amendment retaliation claim. To the extent that Plaintiff intended to bring any other claim, the Court dismisses that claim without prejudice. The Court will now consider Plaintiff's First Amendment retaliation claim.
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.
Thus, to state a retaliation claim, the plaintiff must allege facts sufficient to show that the particular defendant engaged in adverse conduct. Id. at 567. Furthermore, the plaintiff must allege facts sufficient to show that the particular defendant was aware of the protected conduct and that the protected conduct provided that particular defendant with a retaliatory motive causing the defendant to engage in retaliatory adverse conduct; mere speculation is insufficient. Pratt v. Rowland, 65 F.3d 802, 808-09 (9th Cir. 1995). Timing may sometimes provide some circumstantial evidence of retaliatory intent when adverse conduct takes place shortly after the plaintiff engages in protected conduct. See Bruce v Ylst, 351 F.3d 1283, 1288-89 (9th Cir. 2000) (suspect timing of adverse conduct soon after protected conduct, combined with statements by defendants and evidence of pretext created triable issue of fact concerning retaliatory motive). However, there must be something more than such timing to show retaliatory intent; retaliation is not established simply by showing adverse activity after the occurrence of protected speech, but rather a plaintiff must show a connection between the two events. Husky v. City of San Jose, 204 F.3d 893, 899 (9th Cir. 2000); Pratt, 65 F.3d at 808 (“suspect timing” of inmate's transfer to different prison, without more, insufficient to support inference that the transfer was done in retaliation for inmate's exercise of First Amendment rights); Phillippi v. Patterson, 599 Fed.Appx. 288, 289 (9th Cir. 2015); Rupe v. Beard, No. CV-08-2454-EFS PC, 2013 WL 6859278, at *7 (E.D. Cal. Dec. 24, 2013).
The Court finds that Plaintiff fails to state a colorable First Amendment retaliation claim. The complaint does not include any allegations about which Defendant, if any, is responsible for housing Plaintiff as a super-max inmate. As such, the allegations do not support that any Defendant took adverse action against Plaintiff in response to his protected conduct. The Court dismisses this claim without prejudice and with leave to amend.
III. LEAVE TO AMEND
Plaintiff is granted leave to file an amended complaint to cure the deficiencies of the complaint. If Plaintiff chooses to file an amended complaint he is advised that an amended complaint supersedes (replaces) the original complaint and, thus, the 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 amended complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff should file the amended complaint on this Court's approved prisoner civil rights form and it must be entitled “First Amended Complaint.”
The Court notes that if Plaintiff chooses to file an amended complaint curing the deficiencies, as outlined in this order, Plaintiff will file the amended complaint within 30 days from the date of entry of this order. If Plaintiff chooses not to file an amended complaint curing the stated deficiencies, this action will proceed against Defendants Ms. Cooke and John and Jane Doe on Plaintiff's First Amendment claim based on the failure to deliver his emails.
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 Clerk of the Court file Plaintiff's complaint (ECF No. 1-1) and send Plaintiff a courtesy copy of the complaint.
It is further ordered that Plaintiff's First Amendment claim based on the failure to deliver his emails will proceed against Defendants Ms. Cooke and John and Jane Doe, when Plaintiff learns their identities.
It is further ordered that Plaintiff's Fourteenth Amendment due process claim based on the grievance process is dismissed with prejudice, as amendment would be futile.
It is further ordered that Plaintiff's First Amendment retaliation claim is dismissed without prejudice.
It is further ordered that Defendant Ms. Roman is dismissed from the entirety of the case without prejudice.
It is further ordered that Defendants Nevada Department of Corrections and Ely Mail Room Staff are dismissed from the entirety of the case with prejudice, as amendment would be futile.
It is further ordered that, if Plaintiff chooses to file an amended complaint curing the deficiencies of his complaint, as outlined in this order, Plaintiff will file the 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 an amended complaint, he should use the approved form and he will write the words “First Amended” above the words “Civil Rights Complaint” in the caption.
It is further ordered that, if Plaintiff chooses to file an amended complaint, the Court will screen the amended complaint in a separate screening order.
It is further ordered that, if Plaintiff chooses not to file an amended complaint curing the stated deficiencies of the complaint, this action will proceed immediately against Ms. Cooke and John and Jane Doe on Plaintiff's First Amendment claim based on the failure to deliver his emails.