Julian v. Washoe County Jail et al, No. 3:2009cv00676 - Document 6 (D. Nev. 2010)

Court Description: ORDER. IT IS ORDERED that defendant, Washoe County Jail, is DISMISSED from this action. FURTHER ORDERED that in that in light of the courts previous order granting plaintiffs application to proceed in forma pauperis 3 , plaintiff shall not be required to pay an initial partial filing fee. However, even if this action is dismissed, the full filing fee must still be paid.The NDOC shall pay to the Clerk 20% of the preceding month's deposits to plaintiff's account (#1047205 ) in the months that the account exceeds $10.00, until the full $350.00 filing fee has been paid. The Clerk shall send a copy of this Order to the Finance Division of the Clerk's Office (ack'd). The Clerk shall send a copy of th is Order to the Chief of Inmate Services for NDOC, P.O. Box 7011, Carson City, NV. 89702 (ackd). FURTHER ORDERED that the Clerk shall FILE the complaint [1-1] (ackd, copy sent to plaintiff). FURTHER ORDERED that the Clerk shall electronic ally serve the Office of the Attorney General with a copy of this order and plaintiffs complaint (ackd). The Attorney General shall have twenty-one (21) days to advise the Court if they can accept service. If the Attorney General accepts service, d efendants shall file an answer within thirty (30) days following the date of early inmate mediation. If the Court declines to mediate, an answer shall be due within thirty (30) days of the order declining mediation. The parties shall file the attac hed Notice of Intent to Mediate within thirty (30) days. FURTHER ORDERED that petitioner shall file upon the defendants a copy of every pleading including a certificate of service. (See Order for specifics.) Signed by Judge Larry R. Hicks on 09/15/2010. (Copies have been distributed pursuant to the NEF - MLC)
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Julian v. Washoe County Jail et al Doc. 6 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 QUINCY R. S. JULIAN, 10 Plaintiff, 11 vs. 12 WASHOE COUNTY JAIL, et al., 13 Defendants. ) ) ) ) ) ) ) ) ) / 3: 09-cv-00676-LRH-RAM ORDER 14 15 Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has 16 submitted a civil rights complaint pursuant to 42 U.S.C. § 1983. (Docket #1-1.) The Court 17 previously granted Plaintiff’s motion to proceed in forma pauperis. (Docket #3.) 18 I. 19 Screening Pursuant to 28 U.S.C. § 1915A Federal courts must conduct a preliminary screening in any case in which a prisoner seeks 20 redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 21 1915A(a). In its review, the Court must identify any cognizable claims and dismiss any claims that 22 are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary 23 relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se 24 pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d. 696, 25 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential 26 elements: (1) that a right secured by the Constitution or laws of the United States was violated, and 27 (2) that the alleged violation was committed by a person acting under color of state law. See West v. 28 Atkins, 487 U.S. 42, 48 (1988). Dockets.Justia.com 1 In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation 2 Reform Act of 1995 (“PLRA”), a federal court must dismiss a prisoner’s claim, “if the allegation of 3 poverty is untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief 4 may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 5 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be 6 granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same 7 standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. 8 When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 9 the complaint with directions as to curing its deficiencies, unless it is clear from the face of the 10 complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 11 F.3d. 1103, 1106 (9th Cir. 1995). 12 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. 13 Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a 14 claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the 15 claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 16 1999). In making this determination, the Court takes as true all allegations of material fact stated in 17 the complaint, and the Court construes them in the light most favorable to the plaintiff. See 18 Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are 19 held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 20 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). While the standard 21 under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than 22 mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). A 23 formulaic recitation of the elements of a cause of action is insufficient. Id., see Papasan v. Allain, 24 478 U.S. 265, 286 (1986). 25 All or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the 26 prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on legal 27 conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims 28 of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful 2 1 factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 2 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 3 II. 4 Screening of the Complaint Plaintiff sues defendants the Washoe County Jail and Deputy Sheriff Baumann based on 5 events that allegedly occurred on September 9, 2008. Plaintiff claims that on that day, he was made 6 to get out of the shower and stand naked in front of a female nurse, other deputies and over 100 7 inmates. He claims that Officer Baumann forced him to spread his legs, exposing his genitalia. 8 Plaintiff states that Officer Baumann handcuffed him, twisted his thumb and led him naked across 9 the unit to his cell. He claims that he was placed in his cell naked and not until he screamed for a 10 nurse were his clothes returned. Plaintiff claims that his left thumb was injured, including a sprain 11 and nerve damage. Plaintiff seeks monetary damages in compensation for mental distress and pain 12 and suffering. 13 14 15 16 The Civil Rights Act under which this action was filed provides: Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution. . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. 17 The statute plainly requires that there be an actual connection or link between the actions of the 18 defendants and the deprivation alleged to have been suffered by plaintiff. See Monell v. 19 Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 20 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional right, 21 within the meaning of section 1983, if he does an affirmative act, participates in another’s 22 affirmative acts or omits to perform an act which he is legally required to do that causes the 23 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 24 Plaintiff fails to link defendant the Washoe County Jail with some affirmative act or omission. 25 Therefore, Plaintiff’s claims against it must be dismissed. 26 When a prison official stands accused of using excessive physical force in violation of the 27 cruel and unusual punishment clause of the Eighth Amendment, the question turns on whether force 28 was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically 3 1 for the purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 7 (1992) (citing Whitley v. 2 Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was wanton and 3 unnecessary, it is proper to consider factors such as the need for application of force, the relationship 4 between the need and the amount of force used, the threat reasonably perceived by the responsible 5 officials, and any efforts made to temper the severity of the forceful response. Hudson, 503 U.S. at 6 7. The extent of a prisoner’s injury is also a factor that may suggest whether the use of force could 7 plausibly have been thought necessary in a particular situation. Id. Although the absence of serious 8 injury is relevant to the Eighth Amendment inquiry, it is not determinative. Id. That is, use of 9 excessive physical force against a prisoner may constitute cruel and unusual punishment even 10 though the prisoner does not suffer serious injury. Id. at 9. Although an inmate need not have 11 suffered serious injury to bring an excessive force claim against a prison official, “[not] every 12 malevolent touch by a prison guard gives rise to a federal cause of action. Hudson, 503 U.S. at 9. 13 “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, 14 violates a prisoner’s constitutional rights.” Id. (citing Johnson v. Glick, 481 F.2d 1028, 1033 (2d 15 Cir.)(cert. denied sub nom. Johnson, 414 U.S. 1033 (1973)). The Eighth Amendment’s prohibition 16 on cruel and unusual punishments necessarily excludes from constitutional recognition de minimus 17 uses of physical force. Id. at 9-10. 18 The Ninth Circuit has recognized that prisoners retain a limited right to bodily privacy 19 grounded in the Fourth Amendment. Michenfelder v. Sumner, 860 F. 2d 328, 333 (9th Cir. 1988). 20 However, limitations on the exercise of a prisoner’s constitutional rights arise both from the fact of 21 incarceration and from valid penological objectives. Id. at 331 (citing O’Lone v. Estate of Shabazz, 22 482 U.S. 342 (1987)). As such, a prisoner’s right to privacy claim must be analyzed using a rational 23 relationship test to determine whether the impingement on an inmate’s right to privacy is 24 “reasonably related to legitimate penological interests.” 25 The Prison Litigation Reform Act provides that “[n]o Federal civil action may be brought by 26 a prisoner confined in jail, prison, or other correctional facility, for mental and emotional injury 27 suffered while in custody without a prior showing of physical injury.” 42 U.S.C. § 1997e(e). In 28 order to maintain an action seeking relief for emotional distress suffered by a prisoner while in 4 1 custody, there must be an allegation of actual physical injury. Zehner v. Trigg, 952 F. Supp. 1318, 2 1322-23 (S.D. Ind. 1997) (exposure to asbestos during performance of prison job is not “physical 3 injury” to support claim for mental or emotional injury), affirmed 133 F.3d 459, 460 (7th Cir. 1997). 4 The alleged physical injury must be more than de minimus, but need not be significant. Siglar v. 5 Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997) (sore, bruised ear lasting for three days was de 6 minimus injury and fell short of requisite physical injury to support a claim for emotional or mental 7 suffering); Evans v. Allen, 981 F. Supp. 1102, 1109 (N.D. Ill. 1997) (allegation that prisoner had 8 “bodily fluids thrown on [him]” insufficient to satisfy injury requirement of section 1997e(e)); 9 Luong v. Hatt, 979 F. Supp. 481, 485-86 (N.D. Tex. 1997) (minor injuries lasting a few days 10 insufficient to satisfy section 1997e(e)). 11 III. 12 Conclusion The court finds that construing the allegations of the complaint in plaintiff’s favor, the 13 complaint states a colorable Eighth Amendment excessive force claim, a colorable Fourth 14 Amendment bodily privacy claim, and a colorable claim for emotional distress damages. 15 16 17 18 19 IT IS THEREFORE ORDERED that defendant the Washoe County Jail is DISMISSED from this action. IT IS FURTHER ORDERED that in light of the court’s previous order granting plaintiff’s 20 application to proceed in forma pauperis (docket #3), plaintiff shall not be required to pay an initial 21 partial filing fee. However, even if this action is dismissed, the full filing fee must still be paid 22 pursuant to 28 U.S.C. § 1915(b)(2). 23 IT IS FURTHER ORDERED that the plaintiff herein is permitted to maintain this action to 24 conclusion without the necessity of prepayment of any additional fees or costs or the giving of 25 security therefor. This order granting in forma pauperis status shall not extend to the issuance of 26 subpoenas at government expense. 27 28 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall pay to the Clerk of the United States District Court, District of 5 1 Nevada, 20% of the preceding month’s deposits to Plaintiff’s account (inmate #1047205), in the 2 months that the account exceeds $10.00, until the full $350 filing fee has been paid for this action. 3 The Clerk of the Court shall send a copy of this Order to the Finance Division of the Clerk’s Office. 4 The Clerk shall also send a copy of this Order to the attention of the Chief of Inmate Services for the 5 Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. 6 7 IT IS HEREBY ORDERED that the Clerk of the Court shall FILE the complaint. (Docket #1-1.) 8 IT IS FURTHER ORDERED as follows: 9 1. The Clerk shall electronically serve a copy of this order, including the attached 10 Notice of Intent to Proceed with Mediation form, along with a copy of plaintiff’s complaint, on 11 the Office of the Attorney General of the State of Nevada, to the attention of Pamela Sharp. 12 2. The Attorney General’s Office shall advise the Court within twenty-one (21) days of the 13 date of entry of this order whether it can accept service of process for the named defendants. As to 14 any of the named defendants for which the Attorney General’s Office cannot accept service, the 15 Office shall file, under seal, the last known address(es) of those defendant(s). 16 3. If service cannot be accepted for any of the named defendant(s), plaintiff shall file a 17 motion identifying the unserved defendant(s), requesting issuance of a summons, and specifying a 18 full name and address for said defendant(s). Plaintiff is reminded that, pursuant to Rule 4(m) of the 19 Federal Rules of Civil Procedure, service must be accomplished within one hundred twenty (120) 20 days of the date the complaint was filed. 21 4. If the Attorney General accepts service of process for any named defendant(s), such 22 defendant(s) shall file and serve an answer or other response to the complaint within thirty (30) 23 days following the date of the early inmate mediation. If the court declines to mediate this case, an 24 answer or other response shall be due within thirty (30) days following the order declining 25 mediation. 26 27 28 5. The parties SHALL DETACH, COMPLETE, AND FILE the attached Notice of Intent to Proceed with Mediation form on or before thirty (30) days from the date of entry of this order. IT IS FURTHER ORDERED that henceforth, Plaintiff shall serve upon defendants or, if an 6 1 appearance has been entered by counsel, upon their attorney(s), a copy of every pleading, motion or 2 other document submitted for consideration by the court. Plaintiff shall include with the original 3 paper submitted for filing a certificate stating the date that a true and correct copy of the document 4 was mailed to the defendants or counsel for defendants. If counsel has entered a notice of 5 appearance, the plaintiff shall direct service to the individual attorney named in the notice of 6 appearance, at the address stated therein. The Court may disregard any paper received by a district 7 judge or magistrate judge which has not been filed with the Clerk, and any paper received by a 8 district judge, magistrate judge or the Clerk which fails to include a certificate showing proper 9 service. 10 DATED this 15th day of September, 2010. 11 12 ____________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 1 4 ____________________________ Name ____________________________ Prison Number (if applicable) ____________________________ Address ____________________________ 5 ____________________________ 2 3 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 15 _________________________________, Plaintiff, ) ) ) v. ) ) _________________________________ ) ) _________________________________ ) Defendants. ) ____________________________________) Case No. _______________________ NOTICE OF INTENT TO PROCEED WITH MEDIATION This case may be referred to the District of Nevada’s early inmate mediation program. The purpose of this notice is to assess the suitability of this case for mediation. Mediation is a process by which the parties meet with an impartial court-appointed mediator in an effort to bring about an expedient resolution that is satisfactory to all parties. 16 17 1. Do you wish to proceed to early mediation in this case? ____ Yes ____ No 18 2. If no, please state the reason(s) you do not wish to proceed with mediation? ___________ 19 ________________________________________________________________________ 20 ________________________________________________________________________ 21 ________________________________________________________________________ 22 3. List any and all cases, including the case number, that plaintiff has filed in federal or state court in the last five years and the nature of each case. (Attach additional pages if needed). 23 ________________________________________________________________________ 24 ________________________________________________________________________ 25 ________________________________________________________________________ 26 4. 27 28 List any and all cases, including the case number, that are currently pending or any pending grievances concerning issues or claims raised in this case. (Attach additional pages if needed). ________________________________________________________________________ 8 1 ________________________________________________________________________ 2 ________________________________________________________________________ 3 ________________________________________________________________________ 4 5 5. Are there any other comments you would like to express to the court about whether this case is suitable for mediation. You may include a brief statement as to why you believe this case is suitable for mediation. (Attach additional pages if needed). ________________________________________________________________________ 6 ________________________________________________________________________ 7 ________________________________________________________________________ 8 ________________________________________________________________________ 9 10 This form shall be filed with the Clerk of the Court on or before thirty (30) days from the date of entry of this order. 11 12 13 14 Counsel for defendants: By signing this form you are certifying to the court that you have consulted with a representative of the Nevada Department of Corrections concerning participation in mediation. Dated this ____ day of _______________________, 2010. 15 16 _________________________________________ Signature 17 18 19 _________________________________________ Name of person who prepared or helped prepare this document 20 21 22 23 24 25 26 27 28 9