Tipton v. Palmer, No. 3:2010cv00275 - Document 6 (D. Nev. 2010)

Court Description: ORDER GRANTING 5 Motion/Application for Leave to Proceed in forma pauperis. Initial installment of filing fee, $1.66, due by 9/11/2010. FURTHER ORD that even if this action is dismissed, or is otherwise unsuccessful, the full filing fee sha ll still be due. FURTHER ORD Clerk shall send P 2 copies this Order. ( Cps mailed to P 8/12/2010 ) P shall arrange return of 1 copy w payment of initial installment of filing fee. FURTHER ORD NDOC shall pay Clerk from inmate account. Clerk shall se nd a copy to NDOC Chief of Inmate Services. ( Copy mailed to NDOC on 8/12/2010 ) FURTHER ORD DENYING 4 Motion for appt of cnsl. FURTHER ORD all claims against Jack Palmer are dismissed. Jack Palmer is dismissed from this action. FURTHER ORD the c omplaint is DISMISSED WITH LEAVE TO AMEND. FURTHER ORD Amended complaint due 9/11/2010. FURTHER ORD P shall title amended complaint FIRST AMENDED with case number above. FURTHER ORD Clerk shall send P a blank 1983 form w instructions, and a copy of original complaint. ( Form and copy of complaint mailed to P on 8/12/2010 ) ( E-service of Order to Finance on 8/12/2010) Signed by Judge Robert C. Jones on 8/11/2010. (Copies have been distributed pursuant to the NEF - DRM) Modified on 8/12/2010 to correct file date (DRM).
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Tipton v. Palmer Doc. 6 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 DUANE TIPTON, #69967 10 Plaintiff, 11 vs. 12 JACK PALMER, 13 14 Defendant. ) ) ) ) ) ) ) ) ) ) ) / 3:10-cv-00275-RCJ-RAM ORDER 15 16 This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff’s application to 17 proceed in forma pauperis is granted. (Docket #5). Based on the information regarding plaintiff’s 18 financial status in the Application to Proceed in Forma Pauperis, plaintiff is required to pay an initial 19 installment of the filing fee pursuant to 28 U.S.C. §1915. 20 The grant of in forma pauperis status adjusts the amount of the filing fee that plaintiff must 21 prepay -- plaintiff will be required to prepay an initial installment of $1.66, instead of having to prepay 22 the full $350 filing fee for this action. The entire $350 filing fee will, however, remain due from plaintiff, 23 and the institution where plaintiff is incarcerated will collect money toward the payment of the full filing 24 fee when petitioner’s institutional account has a sufficient balance, pursuant to 28 U.S.C. §1915. The 25 entire $350 filing fee will remain due and payable, and will be collected from plaintiff’s institutional 26 account regardless of the outcome of this action. Dockets.Justia.com 1 I. Plaintiff’s Motion for Appointment of Counsel 2 Plaintiff has filed a motion seeking the appointment of counsel in this case. (Docket #4). A 3 litigant in a civil right action does not have a Sixth Amendment right to appointed counsel. Storseth v. 4 Spellman, 654 F.2d 1349, 13253 (9th Cir. 1981). In very limited circumstances, federal courts are 5 empowered to request an attorney to represent an indigent civil litigant. The circumstances in which a 6 court will make such a request, however, are exceedingly rare, and the court will make the request under 7 only extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d 796, 799-800 (9th Cir. 8 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 9 A finding of such exceptional circumstances requires that the Court evaluate both the likelihood 10 of success on the merits and the plaintiff’s ability to articulate his claims in pro se in light of the 11 complexity of the legal issues involved. Neither factor is dispositive, and both must be viewed together 12 in making a finding. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citing Wilborn, supra, 789 13 F.2d at 1331). The district court has considerable discretion in making these findings. The court will not 14 enter an order directing the appointment of counsel. As discussed below, plaintiff’s claims do not appear 15 complex nor has he alleged any extraordinary circumstances that would warrant appointment of counsel. 16 Plaintiff’s motion for the appointment of counsel is denied. 17 18 The court now reviews the complaint. II. Screening Standard 19 Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a prisoner’s 20 claims, “if the allegation of poverty is untrue,” or if the action “is frivolous or malicious,” “fails to state 21 a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune 22 from such relief.” 28 U.S.C. § 1915(e)(2). A claim is legally frivolous when it lacks an arguable basis 23 either in law or in fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss 24 a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual 25 contentions are clearly baseless. Id. at 327. The critical inquiry is whether a constitutional claim, however 26 /// 2 1 inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th 2 Cir. 1989). 3 Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided 4 for in Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under Section 5 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under Rule 6 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 7 F.3d 719, 723 (9th Cir. 2000). A complaint must contain more than a “formulaic recitation of the 8 elements of a cause of action;” it must contain factual allegations sufficient to “raise a right to relief above 9 the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). “The 10 pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] 11 a legally cognizable right of action.” Id. In reviewing a complaint under this standard, the court must 12 accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 13 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to plaintiff and resolve all 14 doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). 15 Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted 16 by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) 17 (per curiam); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). All or part 18 of a complaint filed by a prisoner may be dismissed sua sponte, however, if the prisoner’s claims lack an 19 arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable 20 (e.g. claims against defendants who are immune from suit or claims of infringement of a legal interest 21 which clearly does not exist), as well as claims based on fanciful factual allegations (e.g. fantastic or 22 delusional scenarios). See Neitzke, 490 U.S. at 327-28; see also McKeever v. Block, 932 F.2d 795, 798 23 (9th Cir. 1991). 24 /// 25 /// 26 /// 3 1 To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained 2 of was committed by a person acting under color of state law; and (2) that the conduct deprived the 3 plaintiff of a federal constitutional or statutory right.” Hydrick v. Hunter, 466 F.3d 676, 689 (9th Cir. 4 2006). 5 III. Instant Complaint 6 Plaintiff, who is incarcerated at High Desert State Prison, has sued Lovelock Correctional Center 7 (“LCC”) Warden Jack Palmer, corrections officers Sorci and Jones, Admin. Lt. Ward and a shift sergeant 8 (John Doe IV).1 Plaintiff claims that in June 2009, while incarcerated at LCC, he was cleaning windows 9 when he fell from a ladder from a height of ten feet. He alleges that he refused medical treatment at the 10 time because he did not want to be “charged for a man down.” He claims that he later learned that it was 11 mandatory to be seen by medical staff after a work injury. Plaintiff alleges that he told officer Sorci that 12 he was in pain and needed medication and that Sorci advised him to borrow medication from other 13 inmates and that he could repay the inmates later. Plaintiff also claims that he when he later asked to be 14 seen by medical personnel, his request was refused. While the complaint is unclear, it appears that 15 plaintiff claims that at some point he filed a grievance about Sorci, and that in retaliation Sorci searched 16 his cell and found contraband (jean material). Plaintiff alleges that Sorci threatened plaintiff, telling him 17 that if he didn’t drop his grievance, Sorci would “make his life here hell, and if plaintiff dropped grievance 18 that he will make plaintiff’s life here easier.” Plaintiff alleges that defendants have violated his Eighth 19 Amendment right to be free from cruel and unusual punishment. 20 Warden Palmer A. Claims Against 21 Plaintiff names LCC Warden Jack Palmer as a defendant. However, “[l]iability under [§] 1983 22 arises only upon a showing of personal participation by the defendant. A supervisor is only liable for the 23 constitutional violations of . . . subordinates if the supervisor participated in or directed the violations, 24 or knew of the violations and failed to act to prevent them. There is no respondeat superior 25 1 26 Plaintiff is advised that the term “John Doe” is used when a plaintiff does not know the identity of a defendant. Thus, “Doe” is not necessary for the defendants that plaintiff has identified by name in this action. 4 1 liability under [§] 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted); see also 2 Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007); Ortez v. Washington County, State of Or., 88 F.3d 3 804, 809 (9th Cir. 1996) (concluding proper to dismiss where no allegations of knowledge of or 4 participation in alleged violation). Plaintiff merely alleges that Warden Palmer is responsible for the 5 operation and management of LCC and for the training and supervision of its correctional personnel. 6 Plaintiff does not describe any specific actions by Warden Palmer, nor does he allege that Warden Palmer 7 had knowledge of or participated in any alleged civil rights violation. Defendant Palmer is dismissed from 8 this action. 9 B. Eighth Amendment Claims 10 Plaintiff’s allegations that he was refused medical treatment after falling ten feet from a ladder may 11 implicate his Eighth Amendment rights. The Eighth Amendment prohibits the imposition of cruel and 12 unusual punishments and “embodies broad and idealistic concepts of dignity, civilized standards, humanity 13 and decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A detainee or prisoner’s claim of inadequate 14 medical care does not constitute cruel and unusual punishment unless the mistreatment rises to the level 15 of “deliberate indifference to serious medical needs.” Id. at 106. The “deliberate indifference” standard 16 involves an objective and a subjective prong. First, the alleged deprivation must be, in objective terms, 17 “sufficiently serious.” Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citing Wilson v. Seiter, 501 U.S. 18 294, 298 (1991)). Second, the prison official must act with a “sufficiently culpable state of mind,” which 19 entails more than mere negligence, but less than conduct undertaken for the very purpose of causing 20 harm. Farmer, 511 U.S. at 837. A prison official does not act in a deliberately indifferent manner unless 21 the official “knows of and disregards an excessive risk to inmate health or safety.” Id. 22 In applying this standard, the Ninth Circuit has held that before it can be said that a prisoner’s 23 civil rights have been abridged, “the indifference to his medical needs must be substantial. Mere 24 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton 25 v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980), citing Estelle, 429 U.S. at 105-06. “[A] 26 complaint that a physician has been negligent in diagnosing or treating a medical condition does not state 5 1 a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 2 become a constitutional violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 3 at 106; see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995); McGuckin v. Smith, 4 974 F.2d 1050, 1050 (9th Cir. 1992) (overruled on other grounds), WMX Techs., Inc. v. Miller, 104 F.3d 5 1133, 1136 (9th Cir. 1997)(en banc). Even gross negligence is insufficient to establish deliberate 6 indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 7 A prisoner’s mere disagreement with diagnosis or treatment does not support a claim of deliberate 8 indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 9 Delay of, or interference with, medical treatment can also amount to deliberate indifference. See 10 Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006); Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 11 2002); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v. Smith, 203 F.3d 1122, 1131 (9th 12 Cir. 1996); Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996); McGuckin v. Smith, 974 F.2d 1050, 13 1059 (9th Cir. 1992) overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, (9th Cir. 14 1997) (en banc); Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). Where the prisoner is 15 alleging that delay of medical treatment evinces deliberate indifference, however, the prisoner must show 16 that the delay led to further injury. See Hallett, 296 F.3d at 745-46; McGuckin, 974 F.2d at 1060; 17 Shapley v. Nev. Bd. Of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam). 18 If the prison’s medical staff is not competent to examine, diagnose, and treat inmates’ medical 19 problems, they must “refer prisoners to others who can.” Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 20 1982); see also Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir. 1989) (per curiam); Toussaint 21 v. McCarthy, 801 F.2d 1080, 1111-12 (9th Cir. 1986), abrograted in part on other grounds by Sandin v. 22 Connor, 515 U.S. 472 (1995). Plaintiff’s allegations related to the Eighth Amendment are so vague that 23 the court is unable to determine whether they are frivolous or fail to state a claim for relief. Accordingly, 24 as will be discussed below, these claims will be dismissed, but plaintiff will be granted leave to amend the 25 complaint. 26 /// 6 1 C. Retaliation Claims 2 Plaintiff’s allegations that he was threatened with retaliation for filing grievances may implicate 3 his First Amendment rights. “A prisoner suing prison officials under [§] 1983 for retaliation must allege 4 that he [or she] was retaliated against for exercising his [or her] constitutional rights and that the 5 retaliatory action does not advance legitimate penological goals, such as preserving institutional order 6 and discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam); see also Rhodes 7 v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); Austin v. Terhune, 367 F.3d 1167-1170-71 (9th Cir. 8 2004); Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003); Vignolo v. Miller, 120 F.3d 1075, 1077-78 9 (9th Cir. 1997); Hines v. Gomez, 108 F.3d 265, 267 (9th Cir. 1997); Pratt v. Rowland, 65 F.3d 802, 806 10 (9th Cir. 1995); Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995); Rizzo v. Dawson, 778 F.2d 11 527, 532 (9th Cir. 1985). There is a First Amendment right to petition the government through prison 12 grievance procedures. See Rhodes, 408 F.3d at 567; Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995). 13 Such claims must be evaluated in the light of the deference that must be accorded to prison officials. See 14 Pratt, 65 F.3d at 807; see also Vance v. Barrett, 345 F.3d 1083, 1093 (9th Cir. 2003). The prisoner must 15 submit evidence, either direct or circumstantial, to establish a link between the exercise of constitutional 16 rights and the allegedly retaliatory action. Compare Pratt, 65 F.3d at 807 (finding insufficient evidence) 17 with Valandingham v. Bojorquez, 866 F.2d 1135, 1138-39 (9th Cir. 1989) (finding sufficient evidence). 18 Timing of the events surrounding the alleged retaliation may constitute circumstantial evidence of 19 retaliatory intent. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir. 1989). Finally, 20 the prisoner must demonstrate that his First Amendment rights were actually chilled by the alleged 21 retaliatory action. See Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000); see also Rhodes, 408 F.3d 22 at 568 (explaining that, at the pleading stage, a prisoner is not required “to demonstrate a total chilling 23 of his [or her] First Amendment rights to file grievances and to pursue civil litigation in order to perfect 24 a retaliation claim. Speech can be chilled even when not completely silenced.”) (emphasis in original); 25 Gomez v. Vernon, 255 F.3d 1118, 1127-28 (9th Cir. 2001). 26 /// 7 1 The court finds plaintiff’s allegations related to the First and Eighth Amendment so vague that 2 it is unable to determine whether the current action is frivolous or fails to state a claim for relief. 3 Accordingly, these claims will be dismissed. The court will, however, grant leave to file an amended 4 complaint. If plaintiff elects to proceed in this action by filing an amended complaint, he is advised that 5 he should specifically identify each defendant to the best of his ability, clarify what constitutional right 6 he believes each defendant has violated and support each claim with factual allegations about each 7 defendant’s actions. There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative 8 link or connection between a defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. 362; May 9 v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson, 588 F.2d at 743. Plaintiff’s claims must be set 10 forth in short and plain terms, simply, concisely and directly. See Swierkeiewicz v. Sorema N.A., 534 U.S. 11 506, 514 (2002); Fed. R. Civ. P. 8. 12 Plaintiff is informed that the court cannot refer to a prior pleading in order to make plaintiff’s 13 amended complaint complete. Local Rule 15-220 requires that an amended complaint be complete in 14 itself without reference to any prior pleading. This is because, as a general rule, an amended complaint 15 supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files 16 an amended complaint, the original pleading no longer serves any function in the case. Therefore, in an 17 amended complaint, as in an original complaint, each claim and the involvement of each defendant must 18 be sufficiently alleged. 19 III. Conclusion 20 IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma pauperis 21 (Docket #5) is GRANTED. Plaintiff Duane Tipton, Inmate No. 69967, will be permitted to maintain 22 this action to conclusion without prepayment of the full filing fee. However, plaintiff must pay an initial 23 installment of the filing fee in the amount of $1.66. Plaintiff will not be required to pay fees or costs, 24 other than the filing fee, or give security therefor. This Order granting in forma pauperis status shall not 25 extend to the issuance and service of subpoenas at government expense. 26 /// 8 1 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise unsuccessful, 2 the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the Prisoner Litigation 3 Reform Act of 1996. 4 IT IS FURTHER ORDERED that plaintiff shall have thirty (30) days from the date of entry 5 of this order to have the initial installment of the filing fee, in the amount stated above, sent to the Clerk 6 in the manner described below. Failure to do so may result in the immediate dismissal of this action. 7 IT IS FURTHER ORDERED that the Clerk shall SEND plaintiff two copies of this Order. 8 Plaintiff must make the necessary arrangements to have one copy of this Order, attached to a check in 9 the amount of the initial installment of the filing fee, sent to the Court, by sending a copy of the Order 10 with a “brass slip” to Inmate Services for issuance of the check. 11 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. §1915, as amended by the Prisoner 12 Litigation Reform Act of 1996, the Nevada Department of Corrections shall pay the Clerk of the United 13 States District Court, District of Nevada, 20% of the preceding month’s deposits to plaintiff’s account 14 (in months that the account exceeds $10.00), until the full $350 filing fee has been paid for this action. 15 The Clerk shall send a copy of this order to Albert G. Peralta, Chief of Inmate Services, Nevada 16 Department of Prisons, P.O. Box 7011, Carson City, NV 89702. 17 18 IT IS FURTHER ORDERED that plaintiff’s motion for appointment of counsel (Docket #4) is DENIED. 19 20 IT IS FURTHER ORDERED that all claims against Jack Palmer are dismissed. Jack Palmer is dismissed from this action. 21 22 IT IS FURTHER ORDERED that plaintiff’s complaint is DISMISSED WITH LEAVE TO AMEND. 23 IT IS FURTHER ORDERED that plaintiff will have thirty (30) days from the date that this 24 Order is entered to file his amended complaint, if he believes he can correct the noted deficiencies. The 25 amended complaint must be a complete document in and of itself, and will supersede the original 26 /// 9 1 complaint in its entirety. Any allegations, parties, or requests for relief from prior papers that are not 2 carried forward in the amended complaint will no longer be before the Court. 3 IT IS FURTHER ORDERED that plaintiff shall clearly title the amended complaint as such by 4 placing the words “FIRST AMENDED” immediately above “Civil Rights Complaint Pursuant to 42 5 U.S.C. § 1983” on page 1 in the caption, and plaintiff shall place the case number, 3:10-CV-00275-RCJ- 6 RAM, above the words “FIRST AMENDED”in the space for “Case No.” 7 8 9 10 11 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. Dated: This 11th day of August, 2010. 12 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 10