Opinion
2:22-cv-00615-APG-VCF
01-09-2023
MOHAMED ABDALLA MAHMOUD, Plaintiff v. STEVE SISOLAK, et al., Defendants
SCREENING ORDER OF FIRST AMENDED COMPLAINT ECF NO. 9
Plaintiff Mohamed Abdalla Mahmoud, who is in the custody of the Nevada Department of Corrections (NDOC), has submitted a first amended civil rights complaint (FAC) under 42 U.S.C. § 1983, and has filed an application to proceed in forma pauperis, a motion to extend time, and a motion to exceed page numbers. ECF Nos. 1,7, 8, 9. I will temporarily defer the matter of the filing fee, screen Mahmoud's FAC, and address the motions.
I grant the motion to extend time (ECF No. 7) nunc pro tunc and consider Mahmoud's FAC timely filed.
I grant Mahmoud's motion to file extra pages to his FAC (ECF No. 8) even though it is not necessary to file exhibits to the FAC. See General Order 2021-05 (Oct. 31, 2021). I note that Mahmoud's FAC is 17 pages long, within the page limit provided by General Order 2021-05, but that he attaches approximately 42 pages of exhibits.
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). 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, the Prison Litigation Reform Act (PLRA) requires a federal court to 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.
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
Mahmoud sues multiple defendants for events that took place while he was incarcerated at Clark County Detention Center (CCDC), High Desert State Prison (HDSP), and Southern Desert Correctional Center (SDCC). ECF No. 9. He sues Dr. Prayn, Dr. Martin, Doe Members of NDOC's Utilization Review Panel, as well as multiple John Does. The FAC brings one claim and seeks declaratory and monetary relief. Id. at 17.
Mahmoud alleges that in August 2018, after he had been shot, he received surgery, resulting in roughly forty staples in his stomach. After the surgery, two police officers, John Doe 1 and John Doe 2, moved him by police car to CCDC as a pretrial detainee. This drive caused Mahmoud pain and put stress on his staples. Once he arrived at CCDC, John Doe 3 and John Doe 4 left him sitting in a regular chair in the booking area for over ten hours while liquid and blood leaked from his stomach. Despite complaining about the pain over the ten hours, John Doe 3 and John Doe 4 ignored his request for a bed and pain medication. After being booked, John Doe 3 and John Doe 4 left without giving Mahmoud medication or dinner. That night his stomach continued to leak liquid.
The following day, the physician at CCDC, John Doe 5, examined Mahmoud's stomach. According to Mahmoud, John Doe 5 failed to diagnose his medical condition properly and never gave him a stomach binder. Mahmoud asked John Doe 5 if he could exercise and live a normal life. John Doe 5 responded that he could exercise as long as he did not overdo it. Before Mahmoud's conviction, John Doe 6 and John Doe 7 took him from CCDC to court. During this period, John Doe 6 and John Doe 7 twice ignored John Doe 5's order that Mahmoud not walk and solely be placed in a wheelchair. Walking caused Mahmoud severe pain in his stomach and the sides of his legs. In addition, the pain caused him to drag his legs, and he had to lean on the wall to walk to court.
A few months later, in April 2019, while he was detained at CCDC, something the size of a tennis ball appeared in his stomach, causing him a lot of pain. Mahmoud showed the swelling to the nurses, but they told him that it was just a temporary gas problem. In July 2019, Mahmoud wrote an official complaint about the pain. Mahmoud was seen by a doctor, Jane Doe 1, who said that she would give him medicine for the pain and for gas and conduct an X-ray. An X-ray was conducted in August 2019, but no further action was taken.
Prison officials moved Mahmoud to HDSP in September 2019. In October 2019, a doctor at HDSP, John Doe 9, examined Mahmoud, and Mahmoud asked for immediate assistance to stop the growth of the hernia. John Doe 9 ordered an X-ray, and the results of that X-ray did not identify any “acute abdominal pathology.” After receiving the results, Mahmoud did not receive a stomach binder or pain medicine to manage his condition. Subsequently, Drs. Martin and Prayn met with Mahmoud and prescribed pain medicine, Tylenol, and a stomach binder. This period of being ignored caused Mahmoud to have acute anxiety and imagine that his stomach would explode if he did not receive medical treatment. The fear of dying increased his anxiety so much that he began to smear his feces on his cell door and spill his urine on the floor. Mahmoud also began to contemplate suicide.
When officials at HDSP learned of Mahmoud's suicidal plans, they sent him to a psychiatrist. Mahmoud told the doctor that the reason he acted out and contemplated suicide was because he was suffering from an untreated hernia. The psychiatrist prescribed him medication and attempted to push the other physicians at HDSP to take Mahmoud's medical condition seriously. Mahmoud claims that the Doe Members of NDOC's Utilization Review Panel knew about his conditions but failed to take any action. After making more complaints, Mahmoud finally received surgery in May 2020. After surgery, Mahmoud was housed in second floor cells, which went against medical restrictions.
The FAC states that the surgery occurred in May 2019, but it appears from reading the FAC that it most likely occurred in May 2020. ECF No. 9 at 12.
Based on these allegations, Mahmoud brings claims for Eighth Amendment, Fourteenth Amendment, and American with Disabilities Act (ADA) violations. The FAC states that he was a pretrial detainee while he was housed at CCDC, and after he was convicted he was moved to HDSP. Pretrial detainees may raise inadequate medical care claims under the Fourteenth Amendment's Due Process Clause. Gordon v. Cty. of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018). I liberally construe the FAC as bringing three claims: a claim for inadequate medical care under the Fourteenth Amendment against the CCDC Defendants, a claim of deliberate indifference to a serious medical need under the Eighth Amendment against the NDOC Defendants, and an ADA claim.
A. Fourteenth Amendment Claim
Pretrial detainees may raise inadequate medical care claims under the Fourteenth
Amendment's Due Process Clause. Gordon, 888 F.3d at 1125. The elements of a pretrial detainee's Fourteenth Amendment inadequate medical care claim are:
(i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved-making the consequences of the defendant's conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff's injuries.Id. The third element requires the defendant's conduct to be “objectively unreasonable,” a test that turns on the facts and circumstances of each particular case. Id. A plaintiff must “prove more than negligence but less than subjective intent-something akin to reckless disregard.” Id.
Mahmoud states a colorable inadequate medical care claim. Based on the allegations, John Doe 3 and John Doe 4 left Mahmoud in a chair for ten hours, while liquid and blood leaked from his stomach. Despite complaining about his stomach over the ten hours of booking, John Doe 3 and John Doe 4 ignored his complaints and failed to provide any sort of medical assistance; they did not even provide pain medication. After Mahmoud's booking, John Doe 3 and John Doe 4 did not provide him dinner or medication. They left him in a cell with his stomach still leaking. John Doe 5 also provided inadequate medical care when he examined Mahmoud but failed to provide any care. In fact, John Doe 5 appears to have provided inaccurate care when he told Mahmoud that Mahmoud could continue to exercise. Another doctor, Jane Doe 1, also examined Mahmoud and failed to provide any care after X-raying him. Finally, John Doe 6 and John Doe 7 ignored the order to place Mahmoud in a wheelchair when taking him to court. Walking caused severe stomach pain for Mahmoud, and he had to lean against the wall to walk.
Mahmoud, however, fails to state a colorable inadequate medical care claim against John Doe 1 and John Doe 2 because they merely drove him from the hospital to CCDC.
Mahmoud's allegations are sufficient to state a colorable claim of inadequate medical care on screening against defendants John Doe 3, John Doe 4, John Doe 5, John Doe 6, John Doe 7, and Jane Doe 1 when Plaintiff learns their identities.
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 Defendants comes to light during discovery, Mahmoud may move to substitute the true names of the Doe Defendants to assert claims against them at that time.
B. Eighth Amendment Claim
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), overruled on other grounds by Peralta v. Dillard, 744 F.3d 176, 1082-83 (9th Cir. 2014).
To establish the objective 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). Serious medical needs include those “that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.” Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014).
To satisfy the subjective 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.” Jett, 439 F.3d at 1096. “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). A prison official may only be held liable if he or she “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). 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. Nev. 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”).
Mahmoud states a colorable claim for deliberate indifference to a serious medical need. Based on the allegations, John Doe 9 and Drs. Martin and Prayn failed to operate on his medical condition for almost a year. John Doe 9 x-rayed Mahmoud, but he did not provide any medical care, ignoring Mahmoud's complaints about his stomach. Drs. Martin and Prayn gave Mahmoud pain medication and a stomach binder, but they ignored Mahmoud's constant complaints about his stomach. It was not until the psychiatrist started to push the medical officials that Mahmoud received an operation.
However, Mahmoud fails to state a colorable claim against the Doe Members of NDOC's Utilization Review Panel because he does not provide any factual allegations against them. He merely claims in a conclusory statement that they acted with deliberate indifference to his serious medical need.
Mahmoud's allegations are sufficient to state a colorable claim of deliberate indifference to a serious medical need against defendants Martin, Prayn, and John Doe 9 when Mahmoud learns his or her identity.
C. ADA Claim
In passing, Mahmoud states that prison officials violated the ADA when they failed to place him in a bottom bunk. ECF No. 9 at 13. To the extent that Mahmoud intends to raise this claim concerning the alleged discrimination, I dismiss it without prejudice because Mahmoud does not state a colorable claim. The Ninth Circuit has held that “the ADA prohibits discrimination because of disability, not inadequate treatment for disability.” Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010). “Courts hold that allowing prisoners to utilize the ADA . . . as causes of action for not receiving medical treatment is simply making ‘an end run around the Eighth Amendment.'” King v. Calderwood, 2:13-cv-02080-GMN-PAL,2015 WL 4937953, at *2 (D. Nev. Aug. 19, 2015) (quoting Deeds v. Bannister, 3:11-cv-00351-LRH-VPC, 2013 WL 1250343, at *5 (D. Nev. Jan. 8, 2013). In the context of prison medical services, to state a colorable ADA claim at the screening stage a plaintiff must allege more than a lack of adequate treatment or negligence or deliberate indifference to medical needs; he must allege facts sufficient to show that he was denied the benefits of the prison's medical services program because of his disability. See Postawko v. Mo. Dep't of Corr., No. 2:16-cv-04219-NKL, 2017 WL 1968317, at *12-13 (W.D. Mo. May 11, 2017) (showing a denial of medication services because of hepatitis). Here, Mahmoud does not allege facts that prison officials denied him access to a bottom bunk because of his disability.
III. CONCLUSION
I therefore order that a decision on the application to proceed in forma pauperis (ECF No. 1) is deferred.
I further order the Clerk of the Court to file the FAC (ECF No. 9) and send Mahmoud a courtesy copy.
I further order that Mahmoud's motion to extend time (ECF No. 7) is granted.
I further order that Mahmoud's motion to file extra pages (ECF No. 8) is granted.
I further order that claim 1 alleging inadequate medical care in violation of the Fourteenth Amendment will proceed against defendants John Doe, 3 John Doe 4, John Doe 5, John Doe 6, John Doe 7, and Jane Doe 1 once Mahmoud can identify them. Defendants John Doe 1 and John Doe 2 are dismissed without prejudice from this claim.
I further order that claim 1 alleging deliberate indifference to a serious medical need in violation of the Eighth Amendment will proceed against Martin, Prayn, and John Doe 9 once Mahmoud can identify him. However, defendant Doe Members of NDOC's Utilization Review Panel are dismissed without prejudice from this claim.
I further order that, to the extent that Mahmoud raises a claim under the ADA, I dismiss it without prejudice.
I further order the Clerk of the Court to terminate the following defendants from the docket sheet because they have been dismissed from the case: Doe Members of NDOC's Utilization Review Panel, John Doe 1, and John Doe 2.
I further that, given the nature of the claims that I have permitted to proceed, this action is stayed for 90 days to allow Mahmoud and the defendants an opportunity to settle their dispute before the $350.00 filing fee is paid, an answer is filed, or the discovery process begins. During this 90-day stay period and until I lift the stay, no other pleadings or papers may be filed in this case, and the parties will not engage in any discovery. Nor are the parties required to respond to any paper filed in violation of the stay unless I specifically order them to do so. I will refer this case to the court's Inmate Early Mediation Program, and a subsequent order will be entered. Regardless, within 90 days from the entry of this order, the Office of the Attorney General will file the report form attached to this order regarding the results of the 90-day stay, even if a stipulation for dismissal is entered prior to the end of the 90-day stay. If the parties proceed with this action, an order will be entered setting a date for defendants to file an answer or other response. Following the filing of an answer, a scheduling order will be entered setting discovery and dispositive motion deadlines.
“Settlement” may or may not include payment of money damages. It also may or may not include an agreement to resolve Mahmoud's issues differently. A compromise agreement is one in which neither party is completely satisfied with the result, but both have given something up and both have obtained something in return.
If the case does not settle, Mahmoud will be required to pay the full $350.00 statutory filing fee for a civil action. This fee cannot be waived, and the fee cannot be refunded once the court enters an order granting Mahmoud's application to proceed in forma pauperis. If Mahmoud is allowed to proceed in forma pauperis, the fee will be paid in installments from his prison trust account. See 28 U.S.C. § 1915(b). If Mahmoud is not allowed to proceed in forma pauperis, the full $350 statutory filing fee for a civil action plus the $52 administrative filing fee, for a total of $402, will be due immediately.
If any party seeks to have this case excluded from the inmate mediation program, that party will file a “motion to exclude case from mediation” no later than 21 days prior to the date set for mediation. The responding party will have seven days to file a response. No reply will be filed.
If Mahmoud needs an interpreter to participate in the mediation program, he will file a notice identifying the interpretation language and the need for the interpreter within 30 days from the entry of this order.
The Clerk of Court is further directed to add the Nevada Department of Corrections to the docket as an Interested Party and electronically serve a copy of this order and a copy of Mahmoud's FAC (ECF No. 9) on the Office of the Attorney General of the State of Nevada by adding the Attorney General of the State of Nevada to the interested party on the docket. This does not indicate acceptance of service.
The Attorney General's Office must advise the court within 21 days of the date of the entry of this order whether it will enter a limited notice of appearance on behalf of the defendants for the purpose of participation in the Early Mediation Program. No defenses or objections, including lack of service, will be waived because of the filing of the limited notice of appearance.
REPORT OF ATTORNEY GENERAL RE: RESULTS OF 90-DAY STAY
NOTE: ONLY THE OFFICE OF THE ATTORNEY GENERAL WILL FILE THIS FORM. THE INMATE PLAINTIFF WILL NOT FILE THIS FORM.
On__[the date of the issuance of the screening order], the Court issued its screening order stating that it had conducted its screening pursuant to 28 U.S.C. § 1915A, and that certain specified claims in this case would proceed. The Court ordered the Office of the Attorney General of the State of Nevada to file a report ninety (90) days after the date of the entry of the Court's screening order to indicate the status of the case at the end of the 90-day stay. By filing this form, the Office of the Attorney General hereby complies.
REPORT FORM
[Identify which of the following two situations (identified in bold type) describes the case, and follow the instructions corresponding to the proper statement.]
Situation One: Mediated Case : The case was assigned to mediation by a court-appointed mediator during the 90-day stay. [If this statement is accurate, check ONE of the six statements below and fill in any additional information as required, then proceed to the signature block.]
__A mediation session with a court-appointed mediator was held on __ [enter date], and as of this date, the parties have reached a settlement (even if paperwork to memorialize the settlement remains to be completed). (If this box is checked, the parties are on notice that they must SEPARATELY file either a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in the case until a specified date upon which they will file a stipulation of dismissal.)
__A mediation session with a court-appointed mediator was held on__ [enter date], and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action.
__No mediation session with a court-appointed mediator was held during the 90-day stay, but the parties have nevertheless settled the case. (If this box is checked, the parties are on notice that they must SEPARATELY file a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in this case until a specified date upon which they will file a stipulation of dismissal.)
__No mediation session with a court-appointed mediator was held during the 90-day stay, but one is currently scheduled for[enter date].
__No mediation session with a court-appointed mediator was held during the 90-day stay, and as of this date, no date certain has been scheduled for such a session.
__None of the above five statements describes the status of this case. Contemporaneously with the filing of this report, the Office of the Attorney General of the State of Nevada is filing a separate document detailing the status of this case.
Situation Two: Informal Settlement Discussions Case : The case was NOT assigned to mediation with a court-appointed mediator during the 90-day stay; rather, the parties were encouraged to engage in informal settlement negotiations. [If this statement is accurate, check ONE of the four statements below and fill in any additional information as required, then proceed to the signature block.]
__The parties engaged in settlement discussions and as of this date, the parties have reached a settlement (even if the paperwork to memorialize the settlement remains to be completed). (If this box is checked, the parties are on notice that they must SEPARATELY file either a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in this case until a specified date upon which they will file a stipulation of dismissal.)
__The parties engaged in settlement discussions and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action.
__The parties have not engaged in settlement discussions and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action.
__None of the above three statements fully describes the status of this case.
__Contemporaneously with the filing of this report, the Office of the Attorney General of the State of Nevada is filing a separate document detailing the status of this case.