Opinion
3:23-cv-00123-MMD-CSD
07-19-2023
MICHAEL WHITFIELD, Plaintiff v. J. KEAST, et al., Defendants
ORDER
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE.
I. DISCUSSION
According to the Nevada Department of Corrections (“NDOC”) inmate database, Plaintiff is no longer at the address listed with the Court. The Court notes that pursuant to Nevada Local Rule of Practice IA 3-1, a “pro se party must immediately file with the court written notification of any change of mailing address, email address, telephone number, or facsimile number. The notification must include proof of service on each opposing party or the party's attorney. Failure to comply with this rule may result in the dismissal of the action, entry of default judgment, or other sanctions as deemed appropriate by the court.” Nev. Loc. R. IA 3-1. This Court grants Plaintiff thirty (30) days from the date of entry of this order to file his updated address with this Court. If Plaintiff does not update the Court with his current address within thirty (30) days from the date of entry of this order, this case will be subject to dismissal without prejudice.
II. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff shall file his updated address with the Court within thirty (30) days from the date of this order.
IT IS FURTHER ORDERED that, if Plaintiff fails to timely comply with this order, this case will be subject to dismissal without prejudice.
IT IS FURTHER ORDERED that the Clerk of Court send Plaintiff courtesy copies of this order, the screening order (ECF No. 5), and the Complaint (ECF No. 6).
SCREENING ORDER
I. SUMMARY
Pro se Plaintiff Michael Whitfield, who is incarcerated in the custody of the Nevada Department of Corrections, has submitted a civil rights complaint under 42 U.S.C. § 1983 (ECF No. 1-1 (“Complaint”)), two applications to proceed in forma pauperis (ECF Nos. 1, 4), and a motion seeking the appointment of counsel (ECF No. 1-2). The Court denies the first application to proceed in forma pauperis (ECF No. 1) as moot and treats the second application (ECF No. 4) as the operative application. The matter of the filing fee will be temporarily deferred. The Court now screens Plaintiff's Complaint under 28 U.S.C. § 1915A and disposes of his motion.
II. SCREENING STANDARD
Federal courts must conduct a preliminary screening in any case in which an incarcerated person 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 id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. See 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, under the Prison Litigation Reform Act, a federal court must dismiss an incarcerated person'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 Am., 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. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. See 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 an incarcerated person may be dismissed sua sponte if that person'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).
III. SCREENING OF COMPLAINT
In his Complaint, Plaintiff sues multiple Defendants for events that took place while he was incarcerated at Northern Nevada Correctional Center (“NNCC”). (ECF No. 1-1 at 1.) Plaintiff sues Defendants J. Keast, Jessica Rambur, Fernandes Frazier, William Gittere, L. Boris, M. Flamm, John Doe, and Jane Doe. (Id. at 2, 8.) Plaintiff brings three claims and seeks monetary, declaratory, and injunctive relief. (Id. at 3-6.)
Plaintiff alleges the following. Starting on September 22, 2022, Plaintiff ran out of his blood pressure medication. (Id. at 2.) Despite appearing to request more medication, the pharmacy at NNCC failed to provide him with a refilled prescription. (Id.) Dr. Keast failed to check Plaintiff's blood pressure and vital signs. (Id. at 3.) In addition, Dr. Keast failed to follow the directive governing medical care at NNCC. (Id.) Without his medication and medical care, Plaintiff suffered painful headaches and suffered a minor stroke that required his transfer to Carson Tahoe Hospital. (Id. at 2-3.) Plaintiff states that Rambur, Gittere, and Frazier also failed to implement and follow the directive governing medical care for inmates at NNCC. (Id. at 3.)
On October 11, 2022, Boris treated Plaintiff as “a[n] irritant inmate” and imposed wrist restraints on Plaintiff. (Id. at 5.) Boris then placed Plaintiff in a holding cell. (Id.) Plaintiff asked Boris if he could remove the restraints so that he could use the restroom. (Id.) Boris refused Plaintiff's request, causing Plaintiff to urinate on himself. (Id.) After this incident, Plaintiff filed a grievance, which Flamm denied “using false statements.” (Id.)
Based on these allegations, Plaintiff raises two Eighth Amendment deliberate indifference to a serious medical need claims (claims 1 and 2), and an Eighth Amendment excessive force claim (claim 3). Plaintiff also states that his Fourteenth Amendment rights were violated, which the Court interprets as a Fourteenth Amendment due process claim relating to the investigations of his grievance. The Court will address each of Plaintiff's claims in turn.
A. Eighth Amendment Deliberate Indifference (Claims 1 and 2)
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 1076, 1082-83 (9th Cir. 2014).
To establish the first prong, “the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” Id. “Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care.” Id. (internal quotations omitted). When a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay led to further injury. See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference”).
“A supervisor may be liable if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation . . . Supervisory liability exists even without overt personal participation in the offensive act if supervisory officials implement a policy so deficient that the policy ‘itself is a repudiation of constitutional rights' and is ‘the moving force of the constitutional violation.'” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989).
The Court finds that Plaintiff fails to state colorable Eighth Amendment deliberate indifference to a serious medical need claims. In the Complaint, Plaintiff alleges that Dr. Keast failed to monitor his blood pressure, take his vitals, and follow the medical directive for the care of inmates at NNCC. First, Plaintiff does not state that Dr. Keast knew about his medical condition. In fact, Plaintiff argues in a conclusory manner that Dr. Keast failed to provide him adequate medical care, which resulted in his stroke. Second, the allegations that Dr. Keast, Rambur, Gittere, and Frazier failed to follow the medical directive at NNCC are too vague. Therefore, Plaintiff fails to state colorable Eighth Amendment deliberate indifference to a serious medical need claims. The Court dismisses these claims without prejudice with leave to amend. If Plaintiff chooses to amend these claims, he must state how the Defendants, by name, were deliberately indifferent to his serious medical needs. For example, he should state with specificity what the medical directive is and how the failure to implement it at NNCC resulted in him not receiving his medication and suffering a stroke.
B. Eighth Amendment Excessive Force (Claim 3)
When a prison official stands accused of using excessive physical force in violation of the cruel and unusual punishment clause of the Eighth Amendment, the question turns on whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was wanton and unnecessary, it may also be proper to consider factors such as the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response. Hudson, 503 U.S. at 7. Although an inmate need not have suffered serious injury to bring an excessive force claim against a prison official, the Eighth Amendment's prohibition on cruel and unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force. Id. at 9-10.
The Court finds that Plaintiff fails to state a colorable Eighth Amendment excessive force claim. Plaintiff alleges that Boris imposed wrist restraints that prevented him from urinating, but the imposition of restraints, on its own, does not constitute excessive force. As stated in the Complaint, Boris did not exert any force on Plaintiff. Therefore, the Court dismisses Plaintiff's Eighth Amendment excessive force claim without prejudice with leave to amend. To the extent that Plaintiff is attempting to raise an Eighth Amendment conditions of confinement claim concerning his self-urination, the below legal standard could be instructive.
The “treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509 U.S. 25, 31 (1993). Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. Rhodes v. Chapman, 452 U.S. 337, 347 (1981). However, “[p]rison officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). When determining whether the conditions of confinement meet the objective prong of the Eighth Amendment analysis, the court must analyze each condition separately to determine whether that specific condition violates the Eighth Amendment. See Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981). “[T]he deprivation alleged must be, objectively, sufficiently serious” and “a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotations and citations omitted). As to the subjective prong of the Eighth Amendment analysis, prisoners must establish prison officials' “deliberate indifference” to the unconstitutional conditions of confinement to establish an Eighth Amendment violation. Id. When considering the conditions of confinement, the court should consider the amount of time to which the prisoner was subjected to the condition. Hearns v. Terhune, 413 F.3d 1036, 1042 (9th Cir. 2005).
C. Fourteenth Amendment Due Process
Prisoners have no stand-alone due process rights related to the administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (holding that a state's unpublished policy statements establishing a grievance procedure do not create a constitutionally protected liberty interest); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no liberty interest in the processing of appeals because there is no liberty interest entitling inmates to a specific grievance process).
Plaintiff states that Flamm denied his grievance after the urination incident; however, prisoners have no stand-alone rights related to the administrative grievance process. Therefore, the Court dismisses Plaintiff's Fourteenth Amendment due process claim with prejudice, as amendment would be futile.
IV. LEAVE TO AMEND
Although the Court allows Plaintiff leave to amend, it does not mean that he can amend in any way that he sees fit. Plaintiff has leave to amend additional true facts to show an Eighth Amendment deliberate indifference to a serious medical need claim concerning his stroke and an Eighth Amendment excessive force or conditions of confinement claim. The Court does not give Plaintiff leave to assert new claims.
If Plaintiff chooses to file an amended complaint, he is advised that the amended complaint replaces the Complaint, so 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). This means that the amended complaint must contain all facts and claims and identify all defendants that he intends to sue, including the claims found colorable in this order. He must file the amended complaint on this Court's approved prisoner-civil-rights form, and it must be entitled “First Amended Complaint.” Plaintiff must follow the instructions on the form. He need not and should not allege very many facts in the “nature of the case” section of the form. Rather, in each claim, he should allege facts sufficient to show what each defendant did to violate his civil rights. He must file the amended complaint within 30 days from the date of this order. If Plaintiff fails to file the amended complaint within 30 days from the date of this order, this case will be dismissed without prejudice.
V. MOTION SEEKING THE APPOINTMENT OF COUNSEL
Plaintiff files a motion for appointment of counsel. (ECF No. 1-2.) Plaintiff argues that the issues in his case are complex, and counsel could assist him obtain evidence and litigate the case. (Id. at 5-6.)
A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Under 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford counsel.” However, the court will appoint counsel for indigent civil litigants only in “exceptional circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 action). “When determining whether ‘exceptional circumstances' exist, a court must consider the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims Pro se in light of the complexity of the legal issues involved.” Id. “Neither of these considerations is dispositive and instead must be viewed together.” Id.
Here, the Court does not find exceptional circumstances warranting the appointment of counsel as Plaintiff has not shown a likelihood of success on the merits because he has failed to state any colorable claims. Therefore, the Court denies Plaintiff's motion seeking the appointment of counsel (ECF No. 1-2) without prejudice.
VI. CONCLUSION
It is therefore ordered that a decision on the operative application to proceed in forma pauperis (ECF No. 4) is deferred.
It is further ordered that the application to proceed in forma pauperis (ECF No. 1) is dismissed as moot.
It is further ordered that the Clerk of Court file the Complaint (ECF No. 1-1) and send Plaintiff a courtesy copy.
It is further ordered that Plaintiff's motion seeking the appointment of counsel (ECF No. 1-2) is denied without prejudice.
It is further ordered that the Complaint is dismissed in its entirety without prejudice with leave to amend.
It is further ordered that, if Plaintiff chooses to file an amended complaint curing the deficiencies of his Complaint, as outlined in this order, he will file the amended complaint within 30 days from the date of this order.
It is further ordered that the Clerk of Court send 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 not to file an amended complaint curing the stated deficiencies of the Complaint, this case will be dismissed without prejudice for failure to state a claim.