-VCF Metz v. Tinde et al, No. 2:2011cv01249 - Document 5 (D. Nev. 2011)
Court Description: ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. The Clerk shall file the complaint. IT IS FURTHER ORDERED that the Eighth Amendment conditions of confinement claim in count I and the Eighth Amendment medical care clai m in count II may proceed. IT IS FURTHER ORDERED that count III is DISMISSED with prejudice. IT IS FURTHER ORDERED that Clerk of Court shall issue summons for defendants and deliver to the US Marshal, with 5 copies of complaint, for service. Clerk shall send plaintiff 5 USM-285 forms, one copy of complaint, and a copy of this order. Signed by Judge Kent J. Dawson on 11/1/11. (Copies have been distributed pursuant to the NEF - cc: USM and plaintiff - EDS)
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-VCF Metz v. Tinde et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 ANDREW METZ, 13 Plaintiff, 14 vs. 15 TINDE, et al., 16 Defendants. ) ) ) ) ) ) ) ) ) / 2:11-cv-01249-KJD-VCF ORDER 17 18 This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Based on the information 19 concerning plaintiff’s financial status, plaintiff’s application to proceed in forma pauperis (ECF No. 1) 20 is granted. The court now reviews plaintiff’s complaint. (ECF No. 1-1.) 21 I. Screening Pursuant to 28 U.S.C. § 1915A 22 The court must screen plaintiff’s complaint pursuant to 28 U.S.C. § 1915A. Federal courts must 23 conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity 24 or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must 25 identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 26 upon which relief may be granted or seek monetary relief from a defendant who is immune from such Dockets.Justia.com 1 relief. 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Balistreri 2 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, 3 a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the 4 United States was violated, and (2) that the alleged violation was committed by a person acting under 5 the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 6 In addition to the screening requirements under § 1915A, pursuant to the Prisoner Litigation 7 Reform Act (PLRA), a federal court must dismiss a prisoner’s claims, “if the allegation of poverty is 8 untrue,” or if the action “is frivolous or malicious,” “fails to state a claim on which relief may be 9 granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 10 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief may be granted is 11 provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 12 Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. 13 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 14 Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim 15 is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that 16 would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making 17 this determination, the court takes as true all allegations of material fact stated in the complaint, and the 18 court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 19 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 20 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 21 U.S. 519, 520 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed 22 factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. 23 v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). A formulaic recitation of the elements of a cause of action 24 is insufficient. Id., see Papasan v. Allain, 478 U.S. 265, 286 (1986). 25 Additionally, a reviewing court should “begin by identifying . . . [allegations] that, because they 26 are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 129 2 1 S.Ct. 1937, 1950 (2009). “While legal conclusions can provide the framework of a complaint, they must 2 be supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court 3 should assume their veracity and then determine whether they plausibly give rise to an entitlement to 4 relief.” Id. “Determining whether a complaint states a plausible claim for relief [is] a context-specific 5 task that requires the reviewing court to draw on its judicial experience and common sense.” Id. 6 Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the 7 prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on legal 8 conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of 9 infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual 10 allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 11 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 12 II. Screening of the Complaint 13 In his complaint, plaintiff alleges constitutional violations arising from his conditions of 14 confinement while incarcerated in the Clark County Detention Center (“CCDC”). Defendants are 15 employees of the CCDC. Plaintiff seeks monetary relief against defendants in their individual and 16 official capacities. 17 Plaintiff alleges that a generator on the roof of the north tower of CCDC emits carbon monoxide 18 into the air ducts twice per week. Plaintiff claims that because of the generator’s operation, he is being 19 subjected to harmful fumes that have caused him to suffer a variety of physical maladies. According to 20 plaintiff, correctional officers at CCDC are aware of his exposure to carbon monoxide but have not taken 21 action to remedy the situation. Plaintiff alleges that medical staff have told him that the exhaust blowing 22 into the vents is harmless and have failed to treat his pain and suffering. Additionally, plaintiff claims 23 that defendants have failed to respond to any of his grievances. 24 A. Conditions of Confinement 25 To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison 26 conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S. 3 1 337, 347 (1981). Although prison conditions may be restrictive and harsh, prison officials must provide 2 prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Toussaint v. 3 McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). 4 Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may 5 be held liable only if they acted with “deliberate indifference to a substantial risk of serious harm.” 6 Frost v. Agnos, 152 F.3d 1124, (9th Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994). 7 The deliberate indifference standard involves an objective and a subjective prong. First, the alleged 8 deprivation must be, in objective terms, “sufficiently serious.” Farmer v. Brennan, 511 U.S. at 834 9 (citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must “know of and 10 disregard an excessive risk to inmate health or safety.” Id. at 837. Thus, “a prison official may be held 11 liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that 12 inmates face a substantial risk of harm and disregards that risk by failing to take reasonable measures 13 to abate it.” Farmer v. Brennan, 511 U.S. at 835. Here, in count I, Plaintiff has stated a colorable claim 14 under the Eighth Amendment based on his allegations that he was subjected carbon monoxide fumes 15 that caused him to have chest pains, headaches, dizziness, shortness of breath, skin irritation, and 16 vomiting. 17 B. Inadequate Medical Care 18 The Eighth Amendment prohibits the imposition of cruel and unusual punishments and 19 “embodies broad and idealistic concepts of dignity, civilized standards, humanity and decency.” Estelle 20 v. Gamble, 429 U.S. 97, 102 (1976). A detainee or prisoner’s claim of inadequate medical care does not 21 constitute cruel and unusual punishment unless the mistreatment rises to the level of “deliberate 22 indifference to serious medical needs.” Id. at 106. The “deliberate indifference” standard involves an 23 objective and a subjective prong. First, the alleged deprivation must be, in objective terms, “sufficiently 24 serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 294, 298 25 (1991)). Second, the prison official must act with a “sufficiently culpable state of mind,” which entails 26 more than mere negligence, but less than conduct undertaken for the very purpose of causing harm. 4 1 Farmer, 511 U.S. at 837. A prison official does not act in a deliberately indifferent manner unless the 2 official “knows of and disregards an excessive risk to inmate health or safety.” Id. 3 In applying this standard, the Ninth Circuit Court of Appeals has held that before it can be said 4 that a prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 5 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of 6 action.” Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. 7 at 105-06). “[A] complaint that a physician has been negligent in diagnosing or treating a medical 8 condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical 9 malpractice does not become a constitutional violation merely because the victim is a prisoner.” Estelle 10 v. Gamble, 429 U.S. at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); 11 McGuckin v. Smith, 974 F.2d 1050, 1050 (9th Cir. 1992), overruled on other grounds, WMX Techs., Inc. 12 v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). Even gross negligence is insufficient to 13 establish deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 14 1334 (9th Cir. 1990). A prisoner’s mere disagreement with diagnosis or treatment does not support a 15 claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 16 Delay of, or interference with, medical treatment can also amount to deliberate indifference. See 17 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 18 2002); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1131 (9th 19 Cir. 1996); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); McGuckin v. Smith, 974 F.2d 1050, 20 1059 (9th Cir. 1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, (9th Cir. 21 1997) (en banc); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Where the prisoner 22 is alleging that delay of medical treatment evinces deliberate indifference, however, the prisoner must 23 show that the delay led to further injury. See Hallett, 296 F.3d at 745-46; McGuckin, 974 F.2d at 1060; 24 Shapley v. Nev. Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam). Here, 25 in count II, plaintiff has stated a colorable claim under the Eighth Amendment based on inadequate 26 medical care for his ailments resulting from the generator fumes. 5 1 C. Grievances 2 Prisoners have no constitutional right to an inmate grievance system. Olim v. Wakinekona, 461 3 U.S. 238, 249 (1983); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Thus, the non-existence 4 of, or the failure of prison officials to properly implement an administrative appeals process within the 5 prison system does not raise constitutional concerns. Ramirez, 334 F.3d at 860; Buckley v. Barlow, 997 6 F.2d 494, 495 (8th Cir.1993); Flick v. Alba, 932 F.2d 728 (8th Cir.1991). “[A prison] grievance 7 procedure is a procedural right only, it does not confer any substantive right upon the inmates.” Buckley, 8 997 F.2d at 495 (citing Azeez v. DeRobertis, 568 F.Supp. 8, 10 (N.D.Ill. 1982)); see also Mann v. Adams, 9 855 F.2d 639, 640 (9th Cir.1988). “Hence, it does not give rise to a protected liberty interest requiring 10 the procedural protections envisioned by the Fourteenth Amendment.” Azeez v. DeRobertis, 568 F.Supp. 11 at 10; Spencer v. Moore, 638 F.Supp. 315, 316 (E.D. Mo. 1986). Specifically, failure to process a 12 grievance does not state a constitutional violation. Buckley, 997 F.2d at 495. Here, in count III, plaintiff 13 alleges that none of his grievances have been answered. This allegation fails to state cognizable due 14 process claim under the Fourteenth Amendment. Count III will be dismissed with prejudice. 15 III. 16 17 18 19 Conclusion IT IS THEREFORE ORDERED that plaintiff’s motion to proceed in forma pauperis (ECF No. 1) is GRANTED. The clerk shall FILE the complaint (ECF No. 1-1). IT IS FURTHER ORDERED that the Eighth Amendment conditions of confinement claim in count I and the Eighth Amendment medical care claim in count II MAY PROCEED. 20 IT IS FURTHER ORDERED that count III is DISMISSED with prejudice. 21 IT IS FURTHER ORDERED that the Clerk of Court shall issue summons for defendants 22 Tinde, Ware, Verduzco, Dr. Cornelius, and Scofield and deliver same, along with five copies of the 23 complaint, to the U.S. Marshal for service. The Clerk shall send to plaintiff five USM-285 forms, one 24 copy of the complaint and a copy of this order. Plaintiff shall have twenty (20) days in which to furnish 25 to the U.S. Marshal the required Forms USM-285. Within twenty (20) days after receiving from the U.S. 26 Marshal a copy of the Form USM-285 showing whether service has been accomplished, plaintiff must 6 1 file a notice with the court identifying which defendants were served and which were not served, if any. 2 If plaintiff wishes to have service again attempted on an unserved defendant(s), then a motion must be 3 filed with the court identifying the unserved defendant(s) and specifying a more detailed name and/or 4 address for said defendant(s), or whether some other manner of service should be attempted. 5 IT IS FURTHER ORDERED that henceforth, plaintiff shall serve upon defendants, or, if an 6 appearance has been made by counsel, upon their attorney(s), a copy of every pleading, motion, or other 7 document submitted for consideration by the court. Plaintiff shall include with the original paper 8 submitted for filing a certificate stating the date that a true and correct copy of the document was mailed 9 to the defendants or counsel for defendants. If counsel has entered a notice of appearance, the plaintiff 10 shall direct service to the individual attorney named in the notice of appearance, at the address stated 11 therein. The court may disregard any paper received by a district judge or a magistrate judge that has 12 not been filed with the Clerk, and any paper which fails to include a certificate showing proper service. 13 DATED: November 1, 2011 14 15 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 7
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