Allen v. Clark County Detention Center et al, No. 2:2010cv00857 - Document 13 (D. Nev. 2010)

Court Description: ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk shall send a copy of this order to the CCDC Accounting Supervisor, 330 S. Casino Center Blvd., Las Vegas, NV 89101.IT IS FURTHER ORDERED that, even if this actio n is dismissed, or is otherwiseunsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the Prisoner Litigation Reform Act of 1996. IT IS FURTHER ORDERED that the Clerk of Court shall detach and FILE theco mplaint. (Docket #[1-1]). IT IS FURTHER ORDERED that defendant Nancy McLane is DISMISSED from this action. IT IS FURTHER ORDERED that plaintiffs claims of deliberate indifference to his serious medical needs against all remaining defendants may pro ceed. IT IS FURTHER ORDERED that Count 10 is DISMISSED. IT IS FURTHER ORDERED that the Clerk of Court shall issue summons (See Order for Details) IT IS FURTHER ORDERED that 3 Motion for appointment of counsel is DENIED. Signed by Chief Judge Roger L. Hunt on 8/2/2010. (Copies have been distributed pursuant to the NEF - CC: Order to CCDC Accounting Supervisor, Order, Complaint and Summons to USMS, Order, Complaint, Summons and USM 285s to Plaintiff - SD)
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Allen v. Clark County Detention Center et al Doc. 13 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 11 RONALD LEE ALLEN, #786489 12 Plaintiff, 13 vs. 14 CLARK COUNTY DETENTION CENTER, et al., 15 Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) / 2:10-cv-00857-RLH-LRL ORDER 17 This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff’s 18 application to proceed in forma pauperis is granted. (Docket #1). The court now reviews the complaint 19 and plaintiff’s motion for the appointment of counsel. 20 I. Plaintiff’s Motion for Appointment of Counsel 21 Plaintiff has filed a motion seeking the appointment of counsel in this case. (Docket #3). 22 A litigant in a civil right action does not have a Sixth Amendment right to appointed counsel. Storseth 23 v. Spellman, 654 F.2d 1349, 13253 (9th Cir. 1981). In very limited circumstances, federal courts are 24 empowered to request an attorney to represent an indigent civil litigant. The circumstances in which 25 a court will make such a request, however, are exceedingly rare, and the court will make the request 26 under only extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 1 (9th Cir. 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 2 A finding of such exceptional circumstances requires that the court evaluate both the 3 likelihood of success on the merits and the plaintiff’s ability to articulate his claims in pro se in light 4 of the complexity of the legal issues involved. Neither factor is dispositive, and both must be viewed 5 together in making a finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991)(citing Wilborn, 6 supra, 789 F.2d at 1331). The district court has considerable discretion in making these findings. The 7 court will not enter an order directing the appointment of counsel. As set forth below, plaintiff has 8 demonstrated his ability to articulate his claims in pro se. Plaintiff’s motion for the appointment of 9 counsel is denied. 10 II. Screening Standard 11 Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a 12 prisoner’s claims, “if the allegation of poverty is untrue,” or if the action “is frivolous or malicious,” 13 “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant 14 who is immune from such relief.” 28 U.S.C. § 1915(e)(2). A claim is legally frivolous when it lacks 15 an arguable basis either in law or in fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989). The court may, 16 therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or 17 where the factual contentions are clearly baseless. Id. at 327. The critical inquiry is whether a 18 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson 19 v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). 20 Dismissal of a complaint for failure to state a claim upon which relief may be granted 21 is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard 22 under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review 23 under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of 24 America, 232 F.3d 719, 723 (9th Cir. 2000). A complaint must contain more than a “formulaic 25 recitation of the elements of a cause of action;” it must contain factual allegations sufficient to “raise 26 a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 2 1 1955, 1965 (2007). “The pleading must contain something more...than...a statement of facts that merely 2 creates a suspicion [of] a legally cognizable right of action.” Id. In reviewing a complaint under this 3 standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. 4 v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable 5 to plaintiff and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 6 (1969). 7 Allegations in a pro se complaint are held to less stringent standards than formal pleadings 8 drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 9 (1972) (per curiam); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). All 10 or part of a complaint filed by a prisoner may be dismissed sua sponte, however, if the prisoner’s claims 11 lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are 12 untenable (e.g. claims against defendants who are immune from suit or claims of infringement of a legal 13 interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. 14 fantastic or delusional scenarios). See Neitzke, 490 U.S. at 327-28; see also McKeever v. Block, 932 15 F.2d 795, 798 (9th Cir. 1991). 16 To sustain an action under section 1983, a plaintiff must show (1) that the conduct 17 complained of was committed by a person acting under color of state law; and (2) that the conduct 18 deprived the plaintiff of a federal constitutional or statutory right.” Hydrick v. Hunter, 466 F.3d 676, 689 19 (9th Cir. 2006). 20 III. Instant Complaint 21 Plaintiff, who is a pretrial detainee in Clark County Detention Center (“CCDC”), has 22 sued the CCDC, Clark County, Clark County Sheriff Doug Gillespie, Clark County Department of 23 Social Services Director Nancy McLane, NAPHCARE, and the following CCDC personnel: Medical 24 Director Dr. Russo, Dr. McGrorey, nurses identified as Does 1-4, Kite Nurse Cornelius, and nurse 25 Rebecca Newman, alleging deliberate indifference to his serious medical needs in violation of his Eighth 26 Amendment and Fourteenth Amendment rights. 3 1 As an initial matter, while plaintiff ostensibly alleges nine separate counts of deliberate 2 indifference to his serious medical needs, in fact he sets forth a chronology of events related to a single 3 claim. Thus, the court will construe counts I-IX as a single claim of deliberate indifference to serious 4 medical needs. Plaintiff alleges that in October 2009, a few days before scheduled hand surgery in 5 California, he was extradited to CCDC. He claims the planned surgery would have reconstructed two 6 joints in his left hand and addressed a hairline fracture in his left wrist. He alleges that CCDC and 7 NAPHCARE, alleged medical provider at the CCDC, have a policy that they are not responsible for 8 treating non-life-threatening, preexisting injuries, and that the detainee must use his or her own 9 insurance or secure approval by social services for a medical card and then seek treatment. Plaintiff 10 asserts that Dr. McGrorey saw him on October 23, 2009 and explained that: “your injury is preexisting 11 and you won’t die from it, so we are not obligated to fix your hand. If you do not have insurance you 12 will need to be seen by social services and get approved for a medical card. This could take 6 months, 13 a year, or longer.” Plaintiff claims that his doctor in California informed him that the surgery needed 14 to be done soon to avoid more and permanent damage. He alleges that “Nurse Norma” inquired as to 15 why his appointments with a hand specialist were repeatedly cancelled and relayed to him that medical 16 administration hopes that plaintiff either is released or imprisoned so that the county would not have to 17 pay for surgery. 18 Plaintiff asserts that in April 2010 he was seen by Dr. Russo and a Dr. Zinser. He alleges 19 the following related to that visit: that Dr. Zinser had a standing order to see plaintiff every two or three 20 weeks to see if plaintiff finally had surgery, that Dr. Zinser informed Dr. Russo that he had ordered a 21 30-day referral to a hand specialist at least two or three times, that Dr. Russo examined him and said that 22 he clearly needed surgery, and that Dr. Russo stated that he would put in a referral right away. 23 Plaintiff states that he suffers severe pain that makes it difficult to sleep and that the stress 24 has led him to seek psychological help and medication for anxiety and depression. He alleges that he 25 has submitted numerous kites and grievances throughout his detention. Plaintiff states that he received 26 pain medication that was halted without explanation in April, when he was directed to obtain Motrin 4 1 and Tylenol at the commissary. He also claims that he obtained a social services card, but that his social 2 services “agent” does not answer the phone or check on him and that his card expired on January 31, 3 2010, without his being seen by a hand specialist. Plaintiff seeks damages as well as injunctive relief. 4 Such claims by pretrial detainees are analyzed under the Due Process Clause of the 5 Fourteenth Amendment. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998). The same standard 6 applies to a pretrial detainee’s claim of deliberate indifference under the Fourteenth Amendment as to 7 a prisoner’s claim under the Eighth Amendment. Id. 8 The Eighth Amendment prohibits the imposition of cruel and unusual punishments and 9 “embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency.” Estelle 10 v. Gamble, 429 U.S. 97, 102 (1976). A detainee or prisoner’s claim of inadequate medical care does 11 not constitute cruel and unusual punishment unless the mistreatment rises to the level of “deliberate 12 indifference to serious medical needs.” Id. at 106. In applying this standard, the Ninth Circuit has held 13 that before it can be said that a prisoner’s civil rights have been abridged, “the indifference to his 14 medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 15 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), 16 citing Estelle, 429 U.S. at 105-06. 17 Delay of, or interference with, medical treatment can also amount to deliberate 18 indifference. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Clement v. Gomez, 298 F.3d 898, 19 905 (9th Cir. 2002); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 20 1131 (9th Cir. 1996); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); McGuckin v. Smith, 974 21 F.2d 1050, 1059 (9th Cir. 1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 22 1133, (9th Cir. 1997) (en banc); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 23 To state a claim for municipal or county liability, as well as to state a claim against an 24 arm of the municipality or county, a plaintiff must allege that he suffered a constitutional deprivation 25 that was the product of a policy or custom of the local government unit. City of Canton, Ohio, v. Harris, 26 489 U.S. 378, 385 (1989); Monell v. Department of Social Services, 436 U.S. 658, 691 (1978). 5 1 Plaintiff has alleged that he has a serious hand injury that requires surgery, but that, citing 2 a policy of not treating non-life-threatening, preexisting injuries, defendants have refused to treat his 3 damaged hand, resulting in further damage and causing severe pain, in deliberate indifference to his 4 serious medical needs. As a pretrial detainee, plaintiff states a Fourteenth Amendment claim. 5 Plaintiff names Clark County Department of Social Services Director Nancy McLane 6 as a defendant. However, “[l]iability under [§] 1983 arises only upon a showing of personal 7 participation by the defendant. A supervisor is only liable for the constitutional violations of . . . 8 subordinates if the supervisor participated in or directed the violations, or knew of the violations and 9 failed to act to prevent them. There is no respondeat superior liability under [§] 1983.” Taylor v. List, 10 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted); see also Hydrick v. Hunter, 500 F.3d 978, 988 11 (9th Cir. 2007); Ortez v. Washington County, State of Or., 88 F.3d 804, 809 (9th Cir. 1996) (concluding 12 proper to dismiss where no allegations of knowledge of or participation in alleged violation). Plaintiff 13 does not describe any specific actions by Nancy McLane at all–nor does he allege that she had 14 knowledge of or participated in any alleged civil rights violation. Defendant Nancy McLane is 15 dismissed from this action. 16 Finally, in Count 10 of plaintiff’s complaint, he describes a case he has pending in state 17 court regarding these issues. However, he sets forth no facts alleging a deprivation of his constitutional 18 rights. Count 10 is dismissed for failure to state a claim. 19 IV. Conclusion 20 IT IS THEREFORE ORDERED that plaintiff's application to proceed in forma 21 pauperis (docket #1) without having to prepay the full filing fee is GRANTED; plaintiff shall not be 22 required to pay an initial installment fee. Nevertheless, the full filing fee shall still be due, pursuant to 23 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act of 1996. The movant herein is 24 permitted to maintain this action to conclusion without the necessity of prepayment of fees or costs or 25 the giving of security therefor. This order granting in forma pauperis status shall not extend to the 26 issuance of subpoenas at government expense. 6 1 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Clark 2 County Detention Center shall pay to the Clerk of the United States District Court, District of Nevada, 3 20% of the preceding month’s deposits to plaintiff’s (Ronald Lee Allen, Detainee No. 786489) account 4 (in the months that the account exceeds $10.00) until the full $350.00 filing fee has been paid for this 5 action. If plaintiff should be transferred and become under the care of the Nevada Department of 6 Corrections, the CCDC Accounting Supervisor is directed to send a copy of this order to the attention 7 of the Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, 8 NV 89702, indicating the amount that plaintiff has paid toward his filing fee, so that funds may continue 9 to be deducted from plaintiffs account. The Clerk shall send a copy of this order to the CCDC 10 Accounting Supervisor, 330 S. Casino Center Blvd., Las Vegas, NV 89101. 11 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 12 unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the 13 Prisoner Litigation Reform Act of 1996. IT IS FURTHER ORDERED that the Clerk of Court shall detach and FILE the 14 15 complaint. (Docket #1-1). IT IS FURTHER ORDERED that defendant Nancy McLane is DISMISSED from this 16 17 18 19 action. IT IS FURTHER ORDERED that plaintiff’s claims of deliberate indifference to his serious medical needs against all remaining defendants may proceed. 20 IT IS FURTHER ORDERED that Count 10 is DISMISSED. 21 IT IS FURTHER ORDERED that the Clerk of Court shall issue summons for 22 defendants Clark County Detention Center, Clark County, Nevada, Dr. McGrorey, NAPHCARE, Kite 23 Nurse Cornelius, Nurse Norma, Rebecca Newman, Dr. Russo, and Sheriff Gillespie, and deliver same, 24 along with the complaint, to the U.S. Marshal for service. Plaintiff shall have twenty (20) days in 25 which to furnish to the U.S. Marshal the required Forms USM-285. Within twenty (20) days after 26 receiving from the U.S. Marshal a copy of the Form USM-285 showing whether service has been 7 1 accomplished, plaintiff must file a notice with the court identifying which defendants were served and 2 which were not served, if any. If plaintiff wishes to have service again attempted on an unserved 3 defendant(s), then a motion must be filed with the court identifying the unserved defendant(s) and 4 specifying a more detailed name and/or address for said defendant(s), or whether some other manner 5 of service should be attempted. IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (docket 6 7 #3) is DENIED. 8 IT IS FURTHER ORDERED that henceforth, plaintiff shall serve upon defendants, 9 or, if an appearance has been made by counsel, upon their attorney(s), a copy of every pleading, motion, 10 or other document submitted for consideration by the court. Plaintiff shall include with the original 11 paper submitted for filing a certificate stating the date that a true and correct copy of the document was 12 mailed to the defendants or counsel for defendants. If counsel has entered a notice of appearance, the 13 plaintiff shall direct service to the individual attorney named in the notice of appearance, at the address 14 stated therein. The court may disregard any paper received by a district judge or a magistrate judge that 15 has not been filed with the Clerk, and any paper which fails to include a certificate showing proper 16 service. 17 18 DATED :this _____2,day of ______________________________, 2010. August 2010. _________________________________ ROGER L. HUNT Chief United States District Judge 19 20 21 22 23 24 25 26 8