Lefever v. Gutheridge et al, No. 2:2010cv01917 - Document 2 (D. Nev. 2011)
Court Description: ORDER granting 1 Motion/Application for Leave to Proceed in forma pauperis. Clerk of Court to file Complaint. Count III is DISMISSED. Count I may PROCEED. Count II is DISMISSED with leave to amend. Plaintiff has 30 days to file Amended Complaint. Signed by Chief Judge Roger L. Hunt on 1/10/11. (Copies have been distributed pursuant to the NEF - ECS, cc: forms to plaintiff)
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Lefever v. Gutheridge et al Doc. 2 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 11 FRANKLIN CARL LEFEVER, #81185 12 Plaintiff, 13 vs. 14 SCOTT GUTHERIDGE, et al., 15 Defendants. ) ) ) ) ) ) ) ) ) ) / 2:10-cv-01917-RLH-PAL SCREENING ORDER 16 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 (docket #1-1). 20 I. Screening Standard 21 Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a 22 prisoner’s claims, “if the allegation of poverty is untrue,” or if the action “is frivolous or malicious,” 23 “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who 24 is immune from such relief.” 28 U.S.C. § 1915(e)(2). A claim is legally frivolous when it lacks an 25 arguable basis either in law or in fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989). The court may, 26 therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or Dockets.Justia.com 1 where the factual contentions are clearly baseless. Id. at 327. The critical inquiry is whether a 2 constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson 3 v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). 4 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 5 provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 6 Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under 7 Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 8 232 F.3d 719, 723 (9th Cir. 2000). A complaint must contain more than a “formulaic recitation of the 9 elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to relief 10 above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 11 (2007). “The pleading must contain something more...than...a statement of facts that merely creates a 12 suspicion [of] a legally cognizable right of action.” Id. In reviewing a complaint under this standard, 13 the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex 14 Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to 15 plaintiff and resolve all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 16 Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by 17 lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per 18 curiam); see also Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). All or part of 19 a complaint filed by a prisoner may be dismissed sua sponte, however, if the prisoner’s claims lack an 20 arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable 21 (e.g. claims against defendants who are immune from suit or claims of infringement of a legal interest 22 which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or 23 delusional scenarios). See Neitzke, 490 U.S. at 327-28; see also McKeever v. Block, 932 F.2d 795, 798 24 (9th Cir. 1991). 25 26 To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct 2 1 deprived the plaintiff of a federal constitutional or statutory right.” Hydrick v. Hunter, 466 F.3d 676, 2 689 (9th Cir. 2006). 3 II. Instant Complaint 4 Plaintiff, who is detained at the Nye County Detention Center (“NCDC”), has sued 5 NCDC officers Cobb, Nicholson, Perry, Lt. Dolfin, and Sgts. Scott Gutheridge and Danita Rounsvill. 6 Plaintiff claims Fourteenth Amendment violations. 7 In count I, plaintiff claims the following: in August 2010, officer Nicholson arrived at 8 the cell where plaintiff was to escort him, grabbed plaintiff’s right hand and slammed the handcuff on 9 tight enough to cut plaintiff, slammed the left cuff on and then jerked plaintiff by the wrists. The pain 10 in plaintiff’s left wrist felt as if a bone had broken and his left thumb went numb. Officer Cobb stopped 11 Nicholson and adjusted the cuffs. Plaintiff’s right wrist was bleeding in three places. A doctor later told 12 plaintiff a nerve had been severely pinched and that that was causing the numbness. 13 The use of force on a person imprisoned for conviction of a crime can rise to the level 14 of cruel and unusual punishment in violation of the Eighth Amendment when the action amounts to the 15 “malicious or sadistic” use of force. Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 16 156 (1992); Spain v. Procunier, 600 F.2d 189, 197 (9th Cir.1979). However, as a pretrial detainee, the 17 Fourteenth Amendment applies to plaintiff’s claim. The Eighth Amendment’s prohibitions do not apply 18 “until after conviction and sentence.” Graham v. Connor, 490 U.S. 386, 392 n. 6, 109 S.Ct. 1865, 104 19 L.Ed.2d 443 (1989). Pretrial detainees are protected by substantive due process, and may also challenge 20 the use of force against them under the Fourteenth Amendment if that force is so excessive that it 21 amounts to punishment. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) 22 (“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in 23 accordance with due process of law.”). Pretrial detainees, “who have not been convicted of any crimes, 24 retain at least those constitutional rights that we have held are enjoyed by convicted prisoners.” Id. at 25 545; Redman v. County of San Diego, 942 F.2d 1435, 1441 (9th Cir.1991) (en banc) (holding that 26 “deliberate indifference is the level of culpability that pretrial detainees must establish for a violation 3 1 of their personal security interests under the Fourteenth Amendment,” and “conduct that is so wanton 2 or reckless with respect to the ‘unjustified infliction of harm as is tantamount to a knowing willingness 3 that it occur,’ will also suffice to establish liability because it is conduct equivalent to a deliberate 4 choice.”) (quoting Whitley v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)); see 5 also White v. Roper, 901 F.2d 1501, 1507 (9th Cir.1990) (for a pretrial detainee to show a violation of 6 substantive due process, he must show “egregious government conduct in the form of excessive and 7 brutal use of physical force.”). In deciding whether the force used is “excessive,” the court should 8 consider: “(1) the need for force; (2) the relationship between the need and the amount of force used; 9 (3) the extent of injury inflicted; and (4) whether the force was applied in good faith.”). Id.; cf. Hudson, 10 503 U.S. at 7 (considering same four Whitley factors under Eighth Amendment excessive force analysis). 11 Plaintiff states an excessive force claim in violation of his Fourteenth Amendment rights against 12 defendant Nicholson. 13 In count II, plaintiff alleges that a doctor at NCDC told him that the numbness would 14 resolve in a few days. Plaintiff states that he submitted a medical request to see the doctor when the 15 numbness had not improved after several days. Plaintiff alleges that as of October 12, 2010, about two 16 months later, he had yet to see a doctor. Plaintiff claims deliberate indifference to a serious medical need 17 in violation of the Fourteenth Amendment. 18 Plaintiff is correct that such claims by pretrial detainees are analyzed under the Due 19 Process Clause of the Fourteenth Amendment. Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir.1998). The 20 same standard applies to a pretrial detainee’s claim of deliberate indifference under the Fourteenth 21 Amendment as to a prisoner’s claim under the Eighth Amendment. Id. 22 The Eighth Amendment prohibits the imposition of cruel and unusual punishments and 23 “embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency.” Estelle 24 v. Gamble, 429 U.S. 97, 102 (1976). A detainee or prisoner’s claim of inadequate medical care does not 25 constitute cruel and unusual punishment unless the mistreatment rises to the level of “deliberate 26 indifference to serious medical needs.” Id. at 106. In applying this standard, the Ninth Circuit has held 4 1 that before it can be said that a prisoner’s civil rights have been abridged, “the indifference to his 2 medical needs must be substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not 3 support this cause of action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), 4 citing Estelle, 429 U.S. at 105-06. 5 Delay of, or interference with, medical treatment can also amount to deliberate 6 indifference. See Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Clement v. Gomez, 298 F.3d 898, 7 905 (9th Cir. 2002); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 8 1131 (9th Cir. 1996); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); McGuckin v. Smith, 974 F.2d 9 1050, 1059 (9th Cir. 1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 10 (9th Cir. 1997) (en banc); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). 11 Plaintiff’s allegations that he submitted a medical request to see a doctor when the 12 numbness in his wrist did not improve and that he had still not seen a doctor about 60 days later when 13 he filed this action may implicate his Fourteenth Amendment rights. However, plaintiff has failed to 14 identify who was deliberately indifferent to his serious medical needs. He does not specify whether or 15 what response he received to his request and from whom. As will be discussed below, plaintiff will be 16 granted leave to amend count II. 17 In count III, plaintiff asserts that he was denied use of the grievance process in violation 18 of the Fourteenth Amendment. However, plaintiff then merely recites some grievances and the 19 responses. He notes that officers involved answered the grievances, but doesn’t allege that this is 20 improper. From the facts he sets forth, he appears to have pursued the grievance process. Count III is 21 dismissed for failure to state a claim for which relief may be granted. 22 III. Conclusion 23 Accordingly, plaintiff’s complaint may proceed as to count I. Count III is dismissed 24 without leave to amend. Count II is dismissed; however, plaintiff may amend this claim if he chooses 25 to do so in conformance with this Order. 26 If plaintiff elects to file an amended complaint, he is advised that he should specifically 5 1 identify each defendant to the best of his ability, clarify what constitutional right he believes each 2 defendant has violated and support each claim with factual allegations about each defendant’s actions. 3 There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or connection 4 between a defendant’s actions and the claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May 5 v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 6 Plaintiff’s claims must be set forth in short and plain terms, simply, concisely and directly. See 7 Swierkeiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Fed. R. Civ. P. 8. 8 Plaintiff is informed that the court cannot refer to a prior pleading in order to make 9 plaintiff’s amended complaint complete. Local Rule 15-1 requires that an amended complaint be 10 complete in itself without reference to any prior pleading. This is because, as a general rule, an amended 11 complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once 12 plaintiff files an amended complaint, the original pleading no longer serves any function in the case. 13 Therefore, in an amended complaint, as in an original complaint, each claim and the involvement of each 14 defendant must be sufficiently alleged. If plaintiff elects not to file an amended complaint, this action 15 will proceed as to count I only. 16 IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma 17 pauperis (docket #1) without having to prepay the full filing fee is GRANTED; plaintiff shall not be 18 required to pay an initial installment fee. Nevertheless, the full filing fee shall still be due, pursuant to 19 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act of 1996. The movant herein is 20 permitted to maintain this action to conclusion without the necessity of prepayment of fees or costs or 21 the giving of security therefor. This order granting in forma pauperis status shall not extend to the 22 issuance of subpoenas at government expense. 23 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nye County 24 Detention Center shall pay to the Clerk of the United States District Court, District of Nevada, 20% of 25 the preceding month’s deposits to plaintiff’s (Franklin Carl Lefever, Detainee No. 81185) account (in 26 the months that the account exceeds $10.00) until the full $350.00 filing fee has been paid for this action. 6 1 If plaintiff should be transferred and become under the care of the Nevada Department of Corrections, 2 the NCDC Accounting Supervisor is directed to send a copy of this order to the attention of the Chief 3 of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702, 4 indicating the amount that plaintiff has paid toward his filing fee, so that funds may continue to be 5 deducted from plaintiffs account. The Clerk shall send a copy of this order to the NCDC Accounting 6 Supervisor, P.O. Box 831, Tonopah, NV 89049. 7 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 8 unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the 9 Prisoner Litigation Reform Act of 1996. 10 11 IT IS FURTHER ORDERED that the Clerk of the Court shall FILE the complaint (docket #1-1). 12 IT IS FURTHER ORDERED that count III is DISMISSED. 13 IT IS FURTHER ORDERED that count I MAY PROCEED. 14 IT IS FURTHER ORDERED that count II is DISMISSED with leave to amend in 15 conformance with the instructions provided in this order. 16 IT IS FURTHER ORDERED that plaintiff will have thirty (30) days from the date that 17 this Order is entered to file his amended complaint, if any, if he believes he can correct the noted 18 deficiencies. The amended complaint must be a complete document in and of itself, and will supersede 19 the original complaint in its entirety. Any allegations, parties, or requests for relief from prior papers 20 that are not carried forward in the amended complaint will no longer be before the court. 21 IT IS FURTHER ORDERED that if plaintiff chooses to file an amended complaint, 22 plaintiff shall clearly title the amended complaint as such by placing the words “FIRST AMENDED” 23 immediately above “Civil Rights Complaint Pursuant to 42 U.S.C. § 1983” on page 1 in the caption, and 24 plaintiff shall place the case number, 2:10-CV-01917-RLH-PAL, above the words “FIRST 25 AMENDED”in the space for “Case No.” Failure to amend will result in the matter proceeding as 26 to the count allowed in this order. 7 1 2 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. 3 4 5 DATED this 10th day of January , 2011. 6 7 _________________________________ ROGER L. HUNT Chief United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 8
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