Smith v. Sholties

Full title: ALAN B. SMITH, Plaintiff, v. RANDALL SHOLTIES, et al., Defendants

Court: United States District Court, D. Nevada

Date published: Oct 7, 2010

3:09-cv-00558-LRH-RAM (D. Nev. Oct. 7, 2010)

Opinion

3:09-cv-00558-LRH-RAM.

October 7, 2010

ORDER

CARL BARBIER, District Judge

Plaintiff Alan B. Smith, has filed an amended civil rights complaint in an attempt to address the court's concerns outlined in its screening order of August 17, 2010. The court finds that the amended complaint states a claim against the named defendants on an Eight Amendment violation for use of excessive force. The amended complaint shall be served.

IT IS THEREFORE 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.

DATED: October 7, 2010.

______________________________ Name _______________________________ Prison Number (if applicable) _______________________________ Address _______________________________ _______________________________ UNITED STATES DISTRICT COURT DISTRICT OF NEVADA ____________________________________, ) Case No. ____________________ Plaintiff, ) v. ) ) NOTICE OF INTENT TO _____________________________________ ) PROCEED WITH MEDIATION ) _____________________________________ ) 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 thirty (30) 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

FIRST AMENDED CIVIL RIGHTS COMPLAINT PURSUANT TO 42 U.S.C. § 1983 JURY TRIAL DEMANDED A. JURISDICTION

ALAN B. SMITH NEVADA STATE PRISON-P.o. box 607-CARSON CITY NV 89702 WELLS CONSERVATION CAMP SEPTEMBER 23, 2008 Make a copy of this page to provide the below information if you are naming more that five (5) defendants RANDALL SCHULTHESIS WELLS CONSERVATION CAMP CORRECTIONAL OFFICER BY USING HIS OFFICIAL CAPACITY TO RESTRAIN PLAINTIFF BEFORE PERSONALLY STRIKING PLAINTIFF WITH HIS FIST, DEFENDANT ADOLPH STANKVS WELLS CONSERVATION CAMP CORRECTIONAL OFFICER: LIEVTENANT BY VSINS HIS OFFICIAL CAPACITY TO RESTRAIN PLAINTIFF BEFORE PERSONALLY VIOLATING PLAINTIFF'S EIGHTH AMENDMENT RIGHTS, JAMES MINNIX WELLS CONSERVATION CAMP CORRECTIONAL OFFICER: LIEVTENANT BY USING HIS OFFICIAL CAPACITY TO RESTRAIN PLAINTIFF BEFORE PERSONALLY VIOLATING PLAINTIFF'S EIGHTH AMENDMENT RIGHTS, 28 U.S.C. § 1343 42 U.S.C. § 1983 1) This complaint alleges that the civil rights of Plaintiff, , (print Plaintiff's name) who presently resides at , were (mailing address or place of confinement) violated by the actions of the below named individuals which we're directed against Plaintiff at on the following dates (institution/city where violation occurred) , ______________________________, and ______________________________. (Count I) (Count II) (Count III) 2) Defendant resides at , (full name of first defendant) (address of first defendant) and is employed as . This defendant is sued in his/her (defendant's position and title, if any) individual official capacity. (Check one or both). Explain how this defendant was acting under color of law: . WAS ACTING UNDER COLOR OF LAW. 3) Defendant resides at , (full name of first defendant) (address of first defendant) and is employed as . This defendant is sued in his/her (defendant's position and title, if any) individual official capacity. (Check one or both). Explain how this defendant was acting under color of law: . DEFENDANT STANKUS WAS ACTING UNDER COLOR OF LAW. 4) Defendant resides at , (full name of first defendant) (address of first defendant) and is employed as . This defendant is sued in his/her (defendant's position and title, if any) individual official capacity. (Check one or both). Explain how this defendant was acting under color of law: . DEFENDANT WAS ACTING UNDER COLOR OF LAW. 5) Defendant ______________________________ resides at ______________________________, (full name of first defendant) (address of first defendant) and is employed as ______________________________. This defendant is sued in his/her (defendant's position and title, if any) ___ individual ___ official capacity. (Check one or both). Explain how this defendant was acting under color of law: ____________________________________________________________________ ________________________________________________________________________________________. 6) Defendant ______________________________ resides at ______________________________, (full name of first defendant) (address of first defendant) and is employed as ______________________________. This defendant is sued in his/her (defendant's position and title, if any) ___ individual ___ official capacity. (Check one or both). Explain how this defendant was acting under color of law: _____________________________________________________________ _______________________________________________________________________________________. 7) Jurisdiction is invoked pursuant to (a)(3) and . If you wish to assert jurisdiction under different or additional statutes, list them below. ________________________________________________________________________________________ _______________________________________________________________________________________.

B. NATURE OF THE CASE

1) Briefly state the background of your case.

PLAINTIFF BRINGS ONE COUNT RAISING EXCESSIVE USE OF PHYSICAL FORCE IN VIOLATION OF THE EIGHTH AMENDMENT OF THE U.S. CONSTITVTION. PLAINTIFF IS REQUESTING NOMINATIVE, INJUNCTIVE AND PUNITIVE RELIEF FROM ALL DEFENDANTS NAMED IN THIS ACTION FOR PLACING PLAINTIFF IN RESTRAINTS, THEN EXCEEDING DE MINIMVS FORCS BY UNNECESSARILY ATTACKING HIM IN A MANNER REQUIRING EYE SURGERY AFTER THE ATTACK; IN A MANNER REPVGNANT TO THE CONSCIENCE OF HUMANITY AND CONTEMPORARY STANDAROS OF DECENCY. PLAINTIFF NAMED AS DEFENDANTS RANDALL SCHULTHESIS, CORRECTIONAL OFFICER AT WELLS CONSERVATION CAMP; ADOLPH STANKUS, LIEUTENANT AT WELLS CONSERVATION CAMP; AND JAMES MINNIX, LIEVTENANT AT WELLS CONSERVATION CAMP. ALL DEFENDANTS ARE NAMED IN BOTH THEIR OFFICIAL AND INDIVIDUAL CAPACITIES.

COUNT I

The following civil right has been violated: USE OF EXCESSIVE PHYSICAL FORCE IN VIOLATION OF THE EIGHTH AMENDMENT OF THE U.S. CONSTITUTION. _________________________________________________________________

Supporting Facts: [Include all facts you consider important. State the facts clearly, in your own words, and without citing legal authority or argument. Be sure you describe exactly what each specific defendant (by name) did to violate your rights].

1. ON SEPTEMBER 23, 2008, PLAINTIFF WAS IN THE ROTUNOA WITH SEVERAL OTHER PRISONERS AT WELLS CONSERVATION CAMP (WCC). PLAINTIFF WANTED TO TALK WITH CORRECTIONAL OFFICER RANDALL SCHULTHESIS (HEREINAFTER "DEFENDANT SCHULTHESIS") REGARDING PERSONAL PROBLEMS HOPING DEFENDANT SCHVLTHESIS WOULD HELP; OR REFER PLAINTIFF TO SOMEONE WHO COULD HELP. 2. PLAINTIFF WAS RECENTLY DENIED PAROLE (EXHIBIT A) AND RECEIVED A JPAY LETTER (EMAIL) FROM HIS MOTHER RELAYING THE DEVASTATING NEWS PLAINTIFF'S BROTHER WHO DIED (EXHIBIT B). 3. BECAUSE DEFENDANT SCHULTHESIS RESPONDED MOCKINGLY "SO YOU'RE LOSING YOUR MIND? YOU NEED TO SEE A SHRINK?" PLAINTIFF DEMANDED AN EMERGENCY GRIEVANCE TO EXPLAIN HOW PLAINTIFF IS GOING THROUGH A PERSONAL, FAMILY CRISIS, THAT HE NEED TO TALK TO SOMEONE AND POSSIBLY GO TO SEGREGATION. DEFENDANT SCHULTHESIS BECAMS ANGRY AND DEMANDED THE OTHER PRISONERS LEAVE THE ROTUNDA, LIEVTENANT ADOLPH STANKUS (HEREINAFTER "DEFENDANT STANKUS") AND LIEVTENANT JAMES MINNIX (HEREINAFTER "DEFENDANT MINNIX") CAME OUT OF DEFENDANT STANKUS' OFFICE TO ASSIST DEFENDANT SCHULTHESIS. 4. WHILE COMPLYING WITH A STRIP SEARCH IN THE ROTUNDA, PLAINTIFF AND DEFENDANT, SCHULTHESIS ARGUED ABOUT DEFENDANT SCHULTHESIS' INSENSITIVITY TO PLAINTIFF'S PERSONAL, FAMILY CRISIS AND DENYING HIM ANDEMERGENCY GRIEVANCE. 5. AFTER THE STRIP SEARCH, DEFENDANT SCHULTHESIS PLACED PLAINTIFF IN HANDCUFFS AND ESCORTED PLANTIFF TO DEFENDANT STANKUS' OFFICE AS ORDERED BY DEFENDANT STANKUS, DEFENDANTS SCHULTHESIS, STANKUS AND MINNIX VERBALLY ATTACKED PLAINTIFF FOR "BAD MOUTHING AN OFFICER" (QUOTING ALL DEFENDANTS). 6. BECAUSE PLAINTIFF IS HANDCUFFED, HE IS IN RESTRAINTS AND PREPARED FOR ESCORT TO SEGREGATION WITHOUT INCIDENT, OR FORCE; INSTEAD, DEFENDANTS SCHULTHESIS, STANKUS AND MINNIX ESCORTS PLAINTIFF TO A ROOM CALLED THE "Boom Boom" RODM BY WCC OFFICERS. 7. DEFENDANTS STANKUS AND MINNIX HELD PLAINTIFF IN PLACE, POSITIONING HIM. THEN DEFENDANT SCHULTHESIS STRUCK PLAINTIFF IN THE FACE KNOCKING HIM UNCONSCIOUS. 8. WHEN PLAINTIFF REGAINED CONSCIOUS HE COMPLAINED HE COULDN'T SEE OUT HIS LEFT EYE AND IS TRANSPORTED TO ELY STATE PRISON (ESP) INFIRMARY, ESP GENERAL PRACTITIONER SAW PLAINTIFF'S SWOLLEN FACE AND EYE CONDITION AND SENT PLAINTIFF TO ELY TOWN HOSPITAL EMERGENOY ROOM, THE NEXT DAY PLAINTIFF IS TRANSPORTED TO NORTHERN NEVADA CORPECTIONAL CENTER (NNCC) AND SAW AN OPHTHALMOLOGIST WHO PERFORMED SPECIALIZED SURGERY ON PLAINTIFF'S TORN RETINA IN HIS LEFT EYE, PLAINTIFF STILL HAS PROBLEMS SEEING OUT HIS LEFT EYE. 9. DEFENDANTS SCHULTHESIS, STANKUS AND MINNIX USED THEIR OFFICIAL CAPACITY TO PERSONALLY USE EXCESSIVE PHYSICAL FORCE ON PLAINTIFF IN VIOLATION OF THE EIGHTH AMENDMENT OF THE U.S. CONSTITUTION. END OF COUNT I.

________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________

COUNT III

The following civil right has been violated: N/A _________________________________________________________________ _________________________________________________________________

Supporting Facts: [Include all facts you consider important. State the facts clearly, in your own words, and without citing legal authority or argument. Be sure you describe exactly what each specific defendant (by name) did to violate your rights].

D. PREVIOUS LAWSUITS AND ADMINISTRATIVE RELIEF

same or similar facts dismissed because it was determined to be frivolous, malicious, or failed to state a claim upon which relief could be granted? SEVERAL GRIEVANCE NUMBERS ILEASE REVIEW GRIEVANCES FILED ALL GRIEVANCES WERE DENIED 1) Have you filed other actions in state or federal courts involving the as involved in this action? ___ Yes No. If your answer is "Yes", describe each lawsuit. (If more than one, describe the others on an additional page following the below outline). a) Defendants: ______________________________________________________________________ b) Name of court and docket number: _________________________________________________ c) Disposition (for example, was the case dismissed, appealed or is it still pending?): __________________________________________________________________________________ d) Issues raised: ___________________________________________________________________ __________________________________________________________________________________ __________________________________________________________________________________ e) Approximate date it was filed: _____________________________________ f) Approximate date of disposition: ___________________________________ 2) Have you filed an action in federal court that was ___ Yes No. If your answer is "Yes", describe each lawsuit. (If you have had more than three actions dismissed based on the above reasons, describe the others on an additional page following the below outline). Lawsuit #1 dismissed as frivolous, malicious, or failed to state a claim: a) Defendants: ______________________________________________________________________. b) Name of court and case number: ___________________________________________________. c) The case was dismissed because it was found to be (check one): ___ frivolous ___ malicious or ___ failed to state a claim upon which relief could be granted. d) Issues raised: ___________________________________________________________________ __________________________________________________________________________________. e) Approximate date it was filed: _____________________________________ f) Approximate date of disposition: ___________________________________ Lawsuit #2 dismissed as frivolous, malicious, or failed to state a claim: a) Defendants: ______________________________________________________________________. b) Name of court and case number: ___________________________________________________. c) The case was dismissed because it was found to be (check one): ___ frivolous ___ malicious or ___ failed to state a claim upon which relief could be granted. d) Issues raised: ___________________________________________________________________ __________________________________________________________________________________. e) Approximate date it was filed: _____________________________________ f) Approximate date of disposition: ___________________________________ Lawsuit #3 dismissed as frivolous, malicious, or failed to state a claim: a) Defendants: ______________________________________________________________________. b) Name of court and case number: ___________________________________________________. c) The case was dismissed because it was found to be (check one): ___ frivolous ___ malicious or ___ failed to state a claim upon which relief could be granted. d) Issues raised: ___________________________________________________________________ __________________________________________________________________________________. e) Approximate date it was filed: _____________________________________ f) Approximate date of disposition: ___________________________________ 3) Have you attempted to resolve the dispute stated in this action by seeking relief from the proper administrative officials, e.g., have you exhausted available administrative grievance procedures? Yes ___ No. If your answer is "No", did you not attempt administrative relief because the dispute involved the validity of a: (1) ___ disciplinary hearing; (2) ___ state or federal court decision; (3) ___ state or federal law or regulation; (4) ___ parole board decision; or (5) ___ other _______________________________________________________. If your answer is "Yes", provide the following information. Grievance Number . Date and institution where grievance was filed . IN MORE THAN ONE INSTITUTION Response to grievance: . ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________

E. REQUEST FOR RELIEF

I believe that I am entitled to the following relief:

NOMINN RELIEF FROM ALL DEFENDANTS NAMED IN THIS ACTION. _________________________________________________________________INJUNCTIVE RELIEF FROM ALL DEFENDANTS NAMED IN THIS ACTION. _________________________________________________________________PUNITIVE RELIEF IN EXCESS OF #20,000 FROM EACH DEFENDANT RESPECTIVELY NAMED IN THIS ACTION. ________________________________________________________________.

I understand that a false statement or answer to any question in this complaint will subject me to penalties of perjury. I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE UNITED STATES OF AMERICA THAT THE FOREGOING IS TRUE AND CORRECT. See 28 U.S.C. § 1746 and 18 U.S.C. § 1621.___________ 9/2/10

________________________________________ (Name of person who prepared or helped (Signature of Plaintiff) prepare this complaint if not Plaintiff) (Date)

(Additional space if needed; identify what is being continued)

_______________________________________________________________ _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ ________________________________________________________________.

Exhibit

EXHIBIT B

You have received a Jpay letter, the fastest way to get mail

From: Donita Smith To (Inmate): ALAN SMITH, ID: 93559 Date: 9/13/2008 1:12:40 AM EST, Letter ID: 633648 Location: WCC Hi Alan,

I don't know if you received my letter that I sent in August.

Kevin died on August 3rd. He had been fishing for 6 weeks in Alaska and had returned home on Saturday the 2nd and died in his sleep during the night of Sunday, August 3rd. I had talked to him on Friday night. He was at the airport in Seattle. We were going to Seattle that next morning and I ask him if he wanted to stay there and go to a mariners game with us. He said they had lost his luggage because he had missed his conecting flight so he would just take the early morning flight and see us Sunday night when we got back. All of the family went over for the maimers game so when Kevin got home he just hung out with friends. He told me a lot about his time in Alaska on the phone Friday night and couldn't wait to tell us the rest Sunday evening when we got home. We were going to have dinner with him. This has been so hard.

Alsc. Klinten leaves Sunday for his 3rd tour in traq. Obviously this is hard right now. We just lost Kevin and now klint is off to war. Sometimes life doesn't seem fair.

On a happier note, Skyler is doing very well. He got a great note today from his teacher saying he is doing really well in math and works very hard. He is a really great kid and is working hard to catch up with his class. Crystal only got him to kindergarten 6 weeks out of the entire school year so when he moved up to 1st grade he was behind. We worked with him over the summer hoping to help him catch up more and he is doing very well. He is a bright kid.

Klinten's son and ex live right next to us so Jordan and Skyler walk to school together and spend a lot of time playing. Jordan is a year ahead of Skyler, but about the same size. It is like watching you and Klint when you were little.

I hope you continue to do well in school. Let us know your test results.

Love Mom