Olson v. Palmer, No. 3:2010cv00249 - Document 3 (D. Nev. 2010)
Court Description: ORDER GRANTING 1 Motion/Application for Leave to Proceed in forma pauperis. FURTHER ORD NDOC shall pay Clerk from inmate account. Clerk shall send a copy to NDOC Chief of Inmate Services. ( Copy mailed to NDOC on 8/12/2010 ) FURTHER ORD that even if this action is dismissed, or is otherwise unsuccessful, the full filing fee shall still be due. FURTHER ORD Clerk shall FILE the complaint. FURTHER ORD the complaint is DISMISSED WITH LEAVE TO AMEND. FURTHER ORD Amended complaint due 9/11/2010. FURTHER ORD P shall title amended complaint FIRST AMENDED with case number above. FURTHER ORD Clerk shall send P a blank 1983 form w instructions, and a copy of original complaint. FURTHER ORD Clerk shall send P a blank WHC form w instructions.( Forms and copy of complaint mailed to P on 8/12/2010 )( E-service of Order to Finance on 8/12/2010) Signed by Judge Robert C. Jones on 8/11/2010. (Copies have been distributed pursuant to the NEF - DRM)
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Olson v. Palmer Doc. 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 GAVIN BLAINE OLSON, #69632 10 Plaintiff, 11 vs. 12 JACK PALMER, 13 Defendant. ) ) ) ) ) ) ) ) ) ) 3:10-cv-0249-RCJ-VPC ORDER / 14 15 This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff’s application to 16 proceed in forma pauperis is granted. (Docket #1). The court now reviews the complaint. 17 I. Screening Standard 18 Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a prisoner’s 19 claims, “if the allegation of poverty is untrue,” or if the action “is frivolous or malicious,” “fails to state 20 a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune 21 from such relief.” 28 U.S.C. § 1915(e)(2). A claim is legally frivolous when it lacks an arguable basis 22 either in law or in fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss 23 a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual 24 contentions are clearly baseless. Id. at 327. The critical inquiry is whether a constitutional claim, however 25 inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 26 Cir. 1989). Dockets.Justia.com 1 Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided 2 for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under Section 3 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under Rule 4 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 5 F.3d 719, 723 (9th Cir. 2000). A complaint must contain more than a “formulaic recitation of the 6 elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to relief above 7 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). “The 8 pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] 9 a legally cognizable right of action.” Id. In reviewing a complaint under this standard, the court must 10 accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 11 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to plaintiff and resolve all 12 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 13 Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted 14 by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 15 (per curiam); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). All or part 16 of a complaint filed by a prisoner may be dismissed sua sponte, however, if the prisoner’s claims lack an 17 arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable 18 (e.g. claims against defendants who are immune from suit or claims of infringement of a legal interest 19 which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or 20 delusional scenarios). See Neitzke, 490 U.S. at 327-28; see also McKeever v. Block, 932 F.2d 795, 798 21 (9th Cir. 1991). 22 To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained 23 of was committed by a person acting under color of state law; and (2) that the conduct deprived the 24 plaintiff of a federal constitutional or statutory right.” Hydrick v. Hunter, 466 F.3d 676, 689 (9th Cir. 25 2006). 26 /// 2 1 II. Instant Complaint 2 Plaintiff, who is incarcerated at Lovelock Correctional Center (“LCC”), has sued LCC Warden 3 Jack Palmer. Plaintiff appears to allege pre and post-conviction torture and sexual assault, and that he 4 has not had adequate access to the prison law library. He also challenges his conviction and alleges 5 ineffective assistance of counsel. 6 A. Habeas Corpus Claims 7 Plaintiff claims violations of his “right to be innocent and free from being kidnapped, told I’m 8 guilty and falsely imprisoned, raped and tortured until I admit guilt.” He also alleges “abandonment by 9 counsel of an actually innocent man.” 10 When a prisoner challenges the legality or duration of his custody, or raises a constitutional 11 challenge which could entitle him to an earlier release, his sole federal remedy is a writ of habeas corpus. 12 Preiser v. Rodriguez, 411 U.S. 475 (1973); Young v. Kenny, 907 F.2d 874 (9th Cir. 1990), cert. denied 13 11 S.Ct. 1090 (1991). Moreover, when seeking damages for an allegedly unconstitutional conviction or 14 imprisonment, “a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct 15 appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such 16 determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. 17 § 2254.” Heck v. Humphrey, 512 U.S. 477, 487-88 (1994). “A claim for damages bearing that 18 relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.” 19 Id. at 488. 20 Plaintiff appears to challenge the fact of his conviction as well as whether he received effective 21 assistance of counsel. His sole federal remedy for such claims is a writ of habeas corpus. Accordingly, 22 his claims related to his alleged innocence and the effectiveness of his attorney are dismissed without 23 prejudice. 24 B. Excessive Force and Retaliation 25 Plaintiff appears to claim that he has been subject to torture, solitary confinement and 26 “incommunicado interrogations” and “continual brainwashing about the punishments and pains awaiting 3 1 one who takes names, grieves issues1 or otherwise does not fully submit to everything done to them, can 2 expect the worst possible treatment for their trouble.” Plaintiff’s allegations, while vague, may implicate 3 the Eighth Amendment’s prohibition of the use of excessive force as well as retaliation in violation of his 4 First Amendment rights. 5 With respect to the excessive force allegations: “[W]henever prison officials stand accused of 6 using excessive physical force in violation of the [Eighth Amendment], the core judicial inquiry is . . . 7 whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and 8 sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); see also Whitley v. Albers, 9 475 U.S. 312, 320-21 (1986); Watts v. McKinney, 394 F.3d 710, 711 (9th Cir. 2005); Martinez v. 10 Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003); Marquez v. Gutierrez, 322 F.3d 689, 691-92 (9th Cir. 11 2003); Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002); Jeffers v. Gomez, 267 F.3d 895, 900 (9th 12 Cir. 2001) (per curiam); Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000); Robins v. Meecham, 13 60 F.3d 1436, 1441 (9th Cir. 1995); Berg v. Kincheloe, 794 F.2d 457, 460 (9th Cir. 1986). When 14 determining whether the force is excessive, the court should look to the “extent of injury . . ., the need 15 for application of force, the relationship between that need and the amount of force used, the threat 16 ‘reasonably perceived by the responsible officials,’ and ‘any efforts made to temper the severity of a 17 forceful response.’” Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at 321); see also Martinez, 323 18 F.3d at 1184. Although the Supreme Court has never required a showing that an emergency situation 19 existed, “the absence of an emergency may be probative of whether the force was indeed inflicted 20 maliciously or sadistically.” Jordan, 986 F.2d at 1528 n.7; see also Jeffers, 267 F.3d at 913 (deliberate 21 indifference standard applies where there is no “ongoing prison security measure”); Johnson v. Lewis, 22 217 F.3d 726, 734 (9th Cir. 2000). Moreover, there is no need for a showing of serious injury as a result 23 of the force, but the lack of such injury is relevant to the inquiry. See Hudson, 503 U.S. at 7-9; Martinez, 24 323 F.3d at 1184; Schwenk, 204 F.3d at 1196. 25 1 26 Plaintiff indicates in his complaint that he has not exhausted his administrative remedies due to “intimidation/retaliation/fear of ‘diesel therapy’/and malicious transfer; based on previous experience . . . .” 4 1 With respect to the retaliation allegations: “A prisoner suing prison officials under [§] 1983 for 2 retaliation must allege that he [or she] was retaliated against for exercising his [or her] constitutional 3 rights and that the retaliatory action does not advance legitimate penological goals, such as preserving 4 institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam); 5 see also Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Austin v. Terhune, 367 F.3d 1167- 6 1170-71 (9th Cir. 2004); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003); Vignolo v. Miller, 120 F.3d 7 1075, 1077-78 (9th Cir. 1997); Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997); Pratt v. Rowland, 65 8 F.3d 802, 806 (9th Cir. 1995); Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995); Rizzo v. 9 Dawson, 778 F.2d 527, 532 (9th Cir. 1985). There is a First Amendment right to petition the government 10 through prison grievance procedures. See Rhodes, 408 F.3d at 567; Bradley v. Hall, 64 F.3d 1276, 1279 11 (9th Cir. 1995). Such claims must be evaluated in the light of the deference that must be accorded to 12 prison officials. See Pratt, 65 F.3d at 807; see also Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 13 2003). The prisoner must submit evidence, either direct or circumstantial, to establish a link between 14 the exercise of constitutional rights and the allegedly retaliatory action. Compare Pratt, 65 F.3d at 807 15 (finding insufficient evidence) with Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989) 16 (finding sufficient evidence). Timing of the events surrounding the alleged retaliation may constitute 17 circumstantial evidence of retaliatory intent. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 18 (9th Cir. 1989). Finally, the prisoner must demonstrate that his First Amendment rights were actually 19 chilled by the alleged retaliatory action. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); see also 20 Rhodes, 408 F.3d at 568 (explaining that, at the pleading stage, a prisoner is not required “to demonstrate 21 a total chilling of his [or her] First Amendment rights to file grievances and to pursue civil litigation in 22 order to perfect a retaliation claim. Speech can be chilled even when not completely silenced.”) 23 (emphasis in original); Gomez v. Vernon, 255 F.3d 1118, 1127-28 (9th Cir. 2001). 24 As will be discussed below, the court finds plaintiff’s allegations related to the First and Eighth 25 Amendment so vague that it is unable to determine whether the current action is frivolous or fails to state 26 /// 5 1 a claim for relief. Accordingly, these claims will be dismissed. The court will, however, grant leave to 2 file an amended complaint. 3 C. Access to Courts 4 Plaintiff appears to claim that when the prison law library closed, which according to plaintiff 5 occurred in 2006, it impacted or impeded his ability to access the courts. He states that “legal process” 6 was tampered with, modified, stolen and destroyed and that “when the law library closed circa August 7 14, 2006, it meant law library supervisory and inmate staff, and with said inmate staff housed in a 8 completely separate warehouse off the main prison property, would now be fully insulated from all 9 contact with the main prison population, the people who need the most help and, ironically, the 10 population with the largest number of innocent men . . . .” 11 Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 12 349-50 (1996); Bounds v. Smith, 430 U.S. 817, 825-26 (1977), limited in part on other grounds by 13 Lewis, 518 U.S. at 354; Ching v. Lewis, 895 F.2d 608, 609 (9th Cir. 1990) (per curiam). This right 14 “requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by 15 providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” 16 Bounds, 430 U.S. at 828; see also Madrid v. Gomez, 190 F.3d 990, 995 (9th Cir. 1999). The right, 17 however, “guarantees no particular methodology but rather the conferral of a capability – the capability 18 of bringing contemplated challenges to sentences or conditions of confinement before the courts . . . . [It 19 is this capability] rather than the capability of turning pages in a law library, that is the touchstone” of the 20 right of access to the courts. Lewis, 518 U.S. at 356-57. 21 A prisoner alleging a violation of his right of access to the courts must demonstrate that he has 22 suffered “actual injury.” Lewis, 518 U.S. at 349-50. The right to access the courts is limited to direct 23 criminal appeals, habeas corpus proceedings, and civil rights actions challenging conditions of 24 confinement. Id. at 354-55. “An inmate cannot establish relevant actual injury simply by establishing that 25 his prison’s law library or legal assistance program is sub-par in some theoretical sense.” Id. at 351. 26 Rather, the inmate “must go one step further and demonstrate that the library or legal assistance program 6 1 hindered his efforts to pursue a legal claim.” Id. The actual-injury requirement mandates that an inmate 2 “demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.” Id. at 353. In 3 Lewis v. Casey, the Supreme Court defined prisoners’ right of access to the courts as simply the “right 4 to bring to court a grievance.” Id. at 354. The Court specifically rejected the notion that the state must 5 enable a prisoner to “litigate effectively once in court.” Id. (quoting and disclaiming language contained 6 in Bounds v. Smith, 430 U.S. 817, 825-26 (1977)); see also Cornett v. Donovan, 51 F.3d 894, 898 (9th 7 Cir. 1995) (determining that prisoners’ right of access to the courts is limited to the pleading stage of a 8 civil rights action or petition for writ of habeas corpus). 9 With respect to plaintiff’s allegations regarding his treatment in prison (see section II. B., above) 10 as well as regarding his access to the courts, this court finds that the claims are so vague that it is unable 11 to determine whether the current action is frivolous or fails to state a claim for relief. The court has 12 determined that the complaint does not contain a short and plain statement as required by Fed. R. Civ. 13 P. 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must give fair notice 14 and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 15 646, 649 (9th Cir. 1984). Plaintiff must allege with at least some degree of particularity overt acts 16 engaged in by defendants that support plaintiff’s claim. Id. Because plaintiff has failed to comply with 17 the requirements of Fed. R. Civ. P. 8(a)(2), the complaint must be dismissed. 18 Further, plaintiff names only Warden Jack Palmer as defendant. “Liability under [§] 1983 arises 19 only upon a showing of personal participation by the defendant. A supervisor is only liable for the 20 constitutional violations of . . . subordinates if the supervisor participated in or directed the violations, 21 or knew of the violations and failed to act to prevent them. There is no respondeat superior liability 22 under [§] 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted); see also 23 Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007); Ortez v. Washington County, State of Or., 88 F.3d 24 804, 809 (9th Cir. 1996) (concluding proper to dismiss where no allegations of knowledge of or 25 participation in alleged violation). Plaintiff does not describe any specific actions by Warden Palmer–or 26 /// 7 1 any individual–nor does he allege that Warden Palmer had knowledge of or participated in any alleged 2 civil rights violation. 3 Accordingly, based on the defects described above, plaintiff’s complaint is dismissed. However, 4 plaintiff’s allegations regarding his treatment in prison may implicate his First and Eighth Amendments 5 rights as well as his constitutional right of access to the courts. Therefore, plaintiff has leave to file an 6 amended complaint if he is able to set forth specific facts regarding these alleged violations of his 7 constitutional rights. If plaintiff elects to proceed in this action by filing an amended complaint, he is 8 advised that he should specifically identify each defendant to the best of his ability, clarify what 9 constitutional right he believes each defendant has violated and support each claim with factual 10 allegations about each defendant’s actions. There can be no liability under 42 U.S.C. § 1983 unless there 11 is some affirmative link or connection between a defendant’s actions and the claimed deprivation. Rizzo 12 v. Good, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 13 588 F.2d 740, 743 (9th Cir. 1978). Plaintiff’s claims must be set forth in short and plain terms, simply, 14 concisely and directly. See Swierkeiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Fed. R. Civ. P. 8. 15 Plaintiff must identify at least one of the defendants by name. 16 Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s 17 amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in 18 itself without reference to any prior pleading. This is because, as a general rule, an amended complaint 19 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files 20 an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an 21 amended complaint, as in an original complaint, each claim and the involvement of each defendant must 22 be sufficiently alleged. 23 III. Conclusion 24 IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma pauperis 25 (Docket #1) without having to prepay the full filing fee is GRANTED; plaintiff shall not be required to 26 pay an initial installment fee. Nevertheless, the full filing fee shall still be due, pursuant to 28 U.S.C. § 8 1 1915, as amended by the Prisoner Litigation Reform Act of 1996. The movant herein is permitted to 2 maintain this action to conclusion without the necessity of prepayment of fees or costs or the giving of 3 security therefor. This order granting in forma pauperis status shall not extend to the issuance of 4 subpoenas at government expense. 5 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the Prisoner 6 Litigation Reform Act of 1996, the Nevada Department of Corrections shall pay to the Clerk of the 7 United States District Court, District of Nevada, 20% of the preceding month’s deposits to the account 8 of Gavin Blaine Olson, Inmate No. 69632 (in months that the account exceeds $10.00) until the full $350 9 filing fee has been paid for this action. The Clerk shall send a copy of this order to the attention of Albert 10 G. Peralta, Chief of Inmate Services for the Nevada Department of Prisons, P.O. Box 7011, Carson City, 11 NV 89702. 12 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise unsuccessful, 13 the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the Prisoner Litigation 14 Reform Act of 1996. 15 IT IS FURTHER ORDERED that the Clerk shall FILE the complaint (Docket #1-1). 16 IT IS FURTHER ORDERED that plaintiff’s complaint is DISMISSED WITH LEAVE TO 17 AMEND. 18 IT IS FURTHER ORDERED that plaintiff will have thirty (30) days from the date that this 19 Order is entered to file his amended complaint, if he believes he can correct the noted deficiencies. The 20 amended complaint must be a complete document in and of itself, and will supersede the original 21 complaint in its entirety. Any allegations, parties, or requests for relief from prior papers that are not 22 carried forward in the amended complaint will no longer be before the court. 23 IT IS FURTHER ORDERED that plaintiff shall clearly title the amended complaint as such by 24 placing the words “FIRST AMENDED” immediately above “Civil Rights Complaint Pursuant to 42 25 U.S.C. § 1983” on page 1 in the caption, and plaintiff shall place the case number, 3:10-CV-0249-RCJ- 26 VPC, above the words “FIRST AMENDED”in the space for “Case No.” 9 1 2 3 4 5 6 7 IT IS FURTHER ORDERED that plaintiff is expressly cautioned that if he does not timely file an amended complaint in compliance with this order, this case may be immediately dismissed. IT IS FURTHER ORDERED that the Clerk shall send to plaintiff a blank section 1983 civil rights complaint form with instructions along with one copy of the original complaint. IT IS FURTHER ORDERED that the Clerk shall send to plaintiff a blank petition for writ of habeas corpus form with instructions. DATED this 11th day of August, 2010. 8 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 10
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