Stevens v. Carrol et al, No. 3:2010cv00277 - Document 3 (D. Nev. 2010)
Court Description: ORDER GRANTING 1 Application to proceed IFP; P will not be required to pay an initial installment fee. Nevertheless, the full filing fee shall still be due. FURTHER ORD NDOC shall pay Clerk from inmate account. Clerk shall send copy of this order to NDOC Inmate Services. ( Mailed 7/20/2010 ) FURTHER ORD that even if this action is dismissed the full filing fee shall still be due. FURTHER ORD Clerk shall FILE the complaint. FURTHER ORD Ps claims for violation of his Fourteenth Amendment right s to equal protection and due process are DISMISSED with prejudice and without leave to amend. FURTHER ORD that Ds David Carrol, Jim Benedetti and Howard Skolnik are DISMISSED from this action. FURTHER ORD Ps complaint is DISMISSED WITH LEAVE TO AMEN D. P may file an amended complaint with respect to his claim of retaliation only. FURTHER ORD amended complaint due 8/19/2010. FURTHER ORD P shall clearly title the amended complaint FIRST AMENDED with case number above. IT IS FURTHER ORDERED that P 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 P a blank section 1983 form with instructions along with one copy of the original complaint. ( Form, instr, and copy mailed to P on 7/20/2010 ) Signed by Judge Larry R. Hicks on 7/19/2010. (Copies have been distributed pursuant to the NEF - DRM)
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Stevens v. Carrol et al Doc. 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 COUNTRY JOE STEVENS, #27883 10 Plaintiff, 11 vs. 12 DAVID CARROL, et al., 13 Defendants. 14 15 ) ) ) ) ) ) ) ) ) ) / 3:10-cv-0277-LRH-VPC ORDER This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff’s application 16 to 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, 25 however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 26 639, 640 (9th Cir. 1989). 27 Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided 28 for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under Section Dockets.Justia.com 1 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under Rule 2 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 3 F.3d 719, 723 (9th Cir. 2000). A complaint must contain more than a “formulaic recitation of the 4 elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to relief 5 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 6 (2007). “The pleading must contain something more...than...a statement of facts that merely creates a 7 suspicion [of] a legally cognizable right of action.” Id. In reviewing a complaint under this standard, the 8 court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital 9 Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to plaintiff and 10 resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 11 Allegations in a pro se complaint are held to less stringent standards than formal pleadings 12 drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 13 (1972) (per curiam); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). All 14 or part of a complaint filed by a prisoner may be dismissed sua sponte, however, if the prisoner’s claims 15 lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are 16 untenable (e.g. claims against defendants who are immune from suit or claims of infringement of a legal 17 interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. 18 fantastic or delusional scenarios). See Neitzke, 490 U.S. at 327-28; see also McKeever v. Block, 932 19 F.2d 795, 798 (9th Cir. 1991). 20 To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained 21 of was committed by a person acting under color of state law; and (2) that the conduct deprived the 22 plaintiff of a federal constitutional or statutory right.” Hydrick v. Hunter, 466 F.3d 676, 689 (9th Cir. 23 2006). 24 II. Instant Complaint 25 Plaintiff, who is incarcerated at Northern Nevada Correctional Center (“NNCC”), has sued senior 26 correctional officer David Carrol, wardens James Baca and Jim Benedetti, and Nevada Department of 27 Corrections (“NDOC”) Director Howard Skolnik. Plaintiff alleges that on or about August 15, 2009, 28 he was “verbally attacked” by David Carrol. He claims that Carrol told him “you will raise your hand 2 1 at count time because you are in a wheelchair.” Plaintiff claims he “took offense” to Carrol’s statement 2 and that Carrol’s words subjected plaintiff to ridicule by other inmates and staff. Plaintiff submitted a 3 grievance and asserts that he received his kite back with “AWP James Baca’s threat in retaliation of my 4 seeking redress.” Plaintiff claims violations of his Fourteenth Amendment rights to equal protection and 5 due process and that he was threatened with retaliation in violation of his First Amendment rights. 6 A. Verbal Harassment 7 Plaintiff claims that he was offended when defendant Carrol “verbally attacked” him, and that 8 Jim Benedetti and Howard Skolnik were made aware of Carrol’s conduct through the prison grievance 9 process, but denied the grievance. However, mere verbal harassment or abuse is not sufficient to state 10 a constitutional deprivation under 42 U.S.C. § 1983. Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th 11 Cir. 1987); see also Freeman v. Arpaio, 125 F.3d 732, 738 (9th Cir. 1997) overruled in part by Shakur 12 v. Schiriro, 514 F.3d 878 (9th Cir. 2008). Accordingly, plaintiff’s claims that Carrol’s alleged instance 13 of verbal harassment violated his Fourteenth Amendment rights to equal protection and due process are 14 dismissed with prejudice for failure to state a claim. Defendants Carrol, Benedetti and Skolnik are 15 dismissed from this action. 16 B. Retaliation 17 With respect to the retaliation allegations: “A prisoner suing prison officials under [§] 1983 for 18 retaliation must allege that he [or she] was retaliated against for exercising his [or her] constitutional 19 rights and that the retaliatory action does not advance legitimate penological goals, such as preserving 20 institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam); 21 see also Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Austin v. Terhune, 367 F.3d 1167- 22 1170-71 (9th Cir. 2004); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003); Vignolo v. Miller, 120 F.3d 23 1075, 1077-78 (9th Cir. 1997); Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997); Pratt v. Rowland, 65 24 F.3d 802, 806 (9th Cir. 1995); Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995); Rizzo v. 25 Dawson, 778 F.2d 527, 532 (9th Cir. 1985). There is a First Amendment right to petition the government 26 through prison grievance procedures. See Rhodes, 408 F.3d at 567; Bradley v. Hall, 64 F.3d 1276, 1279 27 (9th Cir. 1995). “Retaliation against prisoners for their exercise of this right is itself a constitutional 28 violation,” and a mere threat of retaliation is sufficient injury if made in retaliation for an inmate’s use 3 1 of prison grievance procedures. Brodheim v. Cry, 584 F.3d 1262, 1269-70 (9th Cir. 2009) (citing Burgess 2 v. Moore, 39 F.3d 216, 218 (8th Cir. 1994); see also Rhodes, 408 F.3d at 566. Such claims must be 3 evaluated in the light of the deference that must be accorded to prison officials. See Pratt, 65 F.3d at 4 807; see also Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 2003). The prisoner must submit evidence, 5 either direct or circumstantial, to establish a link between the exercise of constitutional rights and the 6 allegedly retaliatory action. Compare Pratt, 65 F.3d at 807 (finding insufficient evidence) with 7 Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989) (finding sufficient evidence). 8 Timing of the events surrounding the alleged retaliation may constitute circumstantial evidence of 9 retaliatory intent. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir. 1989). Finally, 10 the prisoner must demonstrate that his First Amendment rights were actually chilled by the alleged 11 retaliatory action. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); see also Rhodes, 408 F.3d 12 at 568 (explaining that, at the pleading stage, a prisoner is not required “to demonstrate a total chilling 13 of his [or her] First Amendment rights to file grievances and to pursue civil litigation in order to perfect 14 a retaliation claim. Speech can be chilled even when not completely silenced.”) (emphasis in original); 15 Gomez v. Vernon, 255 F.3d 1118, 1127-28 (9th Cir. 2001). 16 Plaintiff alleges he received his kite dated September 21, 2009 back with “AWP James Baca’s 17 threat in retaliation of my seeking redress.” Plaintiff’s retaliation claim is so vague that the court is 18 unable to determine whether it is frivolous or fails to state a claim for relief. Thus, this claim will be 19 dismissed, but plaintiff will be granted leave to amend the complaint. 20 Accordingly, plaintiff’s complaint is dismissed. However, plaintiff’s allegations that he was 21 threatened for using the prison grievance process may implicate his First Amendments rights. Therefore, 22 plaintiff has leave to file an amended complaint. If plaintiff elects to proceed in this action by filing an 23 amended complaint, he is advised that he should support his claim with specific factual allegations about 24 the defendant’s actions. Plaintiff’s claims must be set forth in short and plain terms, simply, concisely 25 and directly. See Swierkeiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Fed. R. Civ. P. 8. 26 Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s 27 amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in 28 itself without reference to any prior pleading. This is because, as a general rule, an amended complaint 4 1 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files 2 an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an 3 amended complaint, as in an original complaint, each claim and the involvement of each defendant must 4 be sufficiently alleged. 5 III. Conclusion 6 IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma pauperis 7 (Docket #1) without having to prepay the full filing fee is GRANTED; plaintiff shall not be required 8 to pay an initial installment fee. Nevertheless, the full filing fee shall still be due, pursuant to 28 U.S.C. 9 § 1915, as amended by the Prisoner Litigation Reform Act of 1996. The movant herein is permitted to 10 maintain this action to conclusion without the necessity of prepayment of fees or costs or the giving of 11 security therefor. This order granting in forma pauperis status shall not extend to the issuance of 12 subpoenas at government expense. 13 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the Prisoner 14 Litigation Reform Act of 1996, the Nevada Department of Corrections shall pay to the Clerk of the 15 United States District Court, District of Nevada, 20% of the preceding month’s deposits to the account 16 of Country Joe Stevens, Inmate No. 27883 (in months that the account exceeds $10.00) until the full 17 $350 filing fee has been paid for this action. The Clerk shall send a copy of this order to the attention 18 of Albert G. Peralta, Chief of Inmate Services for the Nevada Department of Prisons, P.O. Box 7011, 19 Carson City, NV 89702. 20 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 21 unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the 22 Prisoner Litigation Reform Act of 1996. 23 IT IS FURTHER ORDERED that the Clerk shall FILE the complaint (Docket #1-1). 24 IT IS FURTHER ORDERED plaintiff’s claims for violation of his Fourteenth Amendment 25 rights to equal protection and due process are DISMISSED with prejudice and without leave to 26 amend. 27 28 IT IS FURTHER ORDERED that Defendants David Carrol, Jim Benedetti and Howard Skolnik are DISMISSED from this action. 5 1 2 IT IS FURTHER ORDERED that plaintiff’s complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff may file an amended complaint with respect to his claim of retaliation only. 3 IT IS FURTHER ORDERED that plaintiff will have thirty (30) days from the date that this 4 Order is entered to file his amended complaint, if he believes he can correct the noted deficiencies. The 5 amended complaint must be a complete document in and of itself, and will supersede the original 6 complaint in its entirety. Any allegations, parties, or requests for relief from prior papers that are not 7 carried forward in the amended complaint will no longer be before the Court. 8 IT IS FURTHER ORDERED that plaintiff shall clearly title the amended complaint as such 9 by placing the words “FIRST AMENDED” immediately above “Civil Rights Complaint Pursuant to 42 10 U.S.C. § 1983” on page 1 in the caption, and plaintiff shall place the case number, 3:10-CV-00277- 11 LRH-VPC, above the words “FIRST AMENDED”in the space for “Case No.” 12 13 14 15 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. 16 17 DATED this 19th day of July, 2010. 18 19 20 21 LARRY R. HICKS UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28 6
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