Friedman v. Baca et al, No. 3:2017cv00433 - Document 83 (D. Nev. 2019)
Court Description: ORDER granting in part and denying in part ECF No. 66 Motion to for Leave to Amend. Plaintiff to file Second Amended Complaint by 4/19/2019 as outlined in order. If Plaintiff fails to file a second amended complaint, the action may be dismissed. Within 14 days of the filing of the second amended complaint, AG to file a notice with Court advising acceptance of service on those defendants, and filing the last known address under seal of those defendant for whom it cannot accept service. A responsive pleading to be filed 21 days after the filing of the Second Amended Complaint. The court will issue a revised scheduling order. See Order for further details and information. Signed by Magistrate Judge William G. Cobb on 3/20/2019. (Copies have been distributed pursuant to the NEF - KW)
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Friedman v. Baca et al Doc. 83 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 KENNETH FRIEDMAN, 8 Case No.: 3:17cv-00433-MMD-WGC Plaintiff, Order 9 v. Re: ECF Nos. 66, 66-1 10 ISIDRO BACA, et al., 11 Defendants. 12 Plaintiff has filed a motion for leave to amend the supplemental complaint and file an 13 amended supplemental complaint (ECF No. 66), along with a proposed first amended 14 supplemental complaint (ECF No. 66-1). Defendants filed a response. (ECF No. 78.) Plaintiff's 15 motion is granted in part and denied in part. 16 I. BACKGROUND 17 Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), 18 and has brought a civil rights action under 42 U.S.C. § 1983 and the Religious Land Use and 19 Institutionalized Persons Act of 2000 (RLUIPA), for conduct that occurred while he was housed 20 at Northern Nevada Correctional Center (NNCC) and High Desert State Prison (HDSP). 21 A. Original Complaint & Screening 22 Plaintiff filed his original complaint, which the court screened. (ECF Nos. 10, 11.) Plaintiff 23 was allowed to proceed in Count I with an Eighth Amendment claim for deliberate indifference to Dockets.Justia.com 1 a serious medical need based on allegations that defendants Harris and Woods stopped providing 2 treatment for a number of his mental health disorders. The other claims were dismissed with leave 3 to amend. (ECF No. 10.) 4 B. Amended Complaint & Screening 5 Plaintiff filed an amended complaint, which the court also screened. (ECF Nos. 15, 16.) 6 Plaintiff was allowed to proceed with an Eighth Amendment deliberate indifference to serious 7 medical needs claim against NNCC Psychiatrist Harris, NNCC Psychologist Nathaniel Woods, 8 NNCC Psychologist Kyle, and (now former) Medical Director Romeo Aranas. He alleges that 9 these defendants stopped providing him treatment for psychological issues. He alleges that he was 10 previously provided psychiatric services at Southern Nevada Adult Mental Health Services 11 (SNAMHS) prior to his incarceration in Nevada, and then at HDSP, for long-term psychiatric 12 issues including paraphilia, post traumatic stress disorder (PTSD) (VA diagnosed), obsessive 13 compulsive disorder (OCD), severe chronic dysthymia, clinical depression and bipolar disorder. 14 Specifically, he claims he is being deprived of adequate psychotherapy, counseling and 15 rehabilitation, which causes him physical and psychological suffering. 16 He was also allowed to proceed with a claim under RLUIPA, based on allegations that 17 Woods, Kyle and Aranas would not allow him to obtain therapy unless he cut his hair and beard, 18 in violation of his orthodox Jewish faith tenets. 19 C. Supplemental Complaint 20 Plaintiff subsequently moved to file a supplemental complaint. (ECF No. 26.) The court 21 granted the motion, noting it would screen the proposed supplemental complaint. (ECF No. 30.) 22 The court screened the supplemental complaint. (ECF No. 36.) 23 2 1 Plaintiff was allowed to proceed with a retaliation claim in Count IV, based on allegations 2 that he learned in April of 2018 that an October 2017 disciplinary charge received from psych 3 nurse Richards was a typical form of retribution by Richards. He claims that Ownsby advised him 4 that Kyle, Pence and Wing created deliberate misdiagnoses after learning of grievances and a 5 lawsuit to evade the need for PTSD treatment, and Plaintiff has been denied PTSD treatment 6 because of this. He alleged that Ownsby was in a position to prevent this, but did nothing. 7 He also alleged in Count IV, that he was put in the "hole" by Does 1 and 2 and was 8 threatened with a retaliatory transfer to ESP over grievances and litigation. This claim was 9 dismissed without prejudice because Plaintiff did not identify the particular defendants. 10 He was allowed to proceed with Eighth Amendment and retaliation claims in Count V 11 against Woods and Kyle. These claims were based on allegations that they restricted his access to 12 mental health services to only a male mental health personnel to retaliate against him for filing 13 grievances and lawsuit. He alleges that they were trying to alter or suppress his sexuality and to 14 keep him from seeking mental health services and to discourage litigation. 15 Finally, Plaintiff asserted a retaliation claim against Does 1 and 2 in Count VI, which was 16 dismissed without prejudice because Plaintiff failed to identify the defendants. There, Plaintiff 17 alleged that on July 16, 2018, these defendants contrived a need to send Plaintiff to Ely State Prison 18 (ESP) as a security risk and placed him in ad-seg based on an incorrect classification score. In 19 addition, they threatened a retaliatory transfer for his complaints and grievances at NNCC. He was 20 then placed in a housing unit with less access to calls, religious activities and yard time. This 21 occurred days after he refused a settlement offer. 22 /// 23 /// 3 1 D. Current Status of Defendants 2 Harris was dismissed without prejudice as Plaintiff failed to timely serve him under Federal 3 Rule of Civil Procedure 4(m). (ECF No. 33.) District Judge Du issued a notice of intent to dismiss 4 Ownsby, who has yet to be served. (ECF No. 76.) Therefore, currently the defendants are: 5 Psychologist Nathaniel Woods, Psychologist B. Kyle, (former) Medical Director Romeo Aranas, 6 Mental Health Social Worker Pence, Psychologist Wing, and Psych Nurse Richards. 7 E. Scheduling Order & Motion to Re-Set Scheduling Order Deadlines 8 A scheduling order was issued on December 28, 2018, setting, among other things, a 9 deadline to add or join parties or file an amendment of February 26, 2019. 10 On February 21, 2019, Plaintiff filed a motion to extend the scheduling order deadlines 11 stating that an amended supplemental complaint that adds new defendants and facts not in the 12 current supplemental complaint is being filed with the court. (ECF No. 64.) At that time, he had 13 not filed a motion for leave to amend or proposed amended pleading. Nor did he specifically stated 14 he needed an extension of the current deadline to file a motion for leave to amend to add a party 15 or facts. Therefore, the motion was denied. (ECF No. 65.) 16 In light of the ruling on this motion, the court will issue a revised scheduling order. 17 F. Motion for Temporary Restraining Order and Preliminary Injunction 18 Plaintiff filed a motion for temporary restraining order and preliminary injunction on 19 January 2, 2019, which the court will set for a hearing and address separately. 20 G. Motion to Amend/Proposed First Amended Supplemental Complaint 21 On February 21, 2019, before the scheduling order deadline and on the same day the court 22 issued the order denying his motion to re-set the scheduling order deadlines, Plaintiff filed a motion 23 4 1 for leave to file an amended supplemental complaint and proposed first amended supplemental 2 complaint. (ECF Nos. 66, 66-1.) 3 The motion states that Plaintiff seeks leave to file an amended supplemental complaint, 4 adding Lisa Walsh as Doe 1 in Counts IV and VI, noting that he is still uncertain of the identity of 5 Doe 2. 6 Defendants' response acknowledges Plaintiff should be given leave to amend to add Walsh 7 as a party. Defendants argue, however: (1) Plaintiff still has not identified Doe 2 and has not served 8 ANY discovery as of yet, therefore, Doe 2 should be dismissed; (2) Plaintiff should clarify whether 9 he intends to proceed against Deputy Attorney General Hardcastle; and (3) Plaintiff should be 10 required to file a single amended pleading that incorporates all of the claims and allegations 11 without incorporating by reference any prior pleading. (ECF No. 78.) 12 13 II. LEGAL STANDARD- LEAVE TO AMEND & SCREENING “A party may amend its pleading once as a matter of course within: (A) 21 days after 14 serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after 15 service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), 16 whichever is earlier.” Fed. R. Civ. P. 15(a)(1)(A), (B). Otherwise, a party must seek the opposing 17 party’s written consent or leave of court to amend a pleading. Fed. R. Civ. P. 15(a)(2). Here, Urbina 18 was required to seek leave to amend. 19 “The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). 20 Leave to amend need not be given where amendment: “(1) prejudices the opposing party; (2) is 21 sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.” Amerisource Bergen 22 Corp. v. Dialysist West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation omitted). 23 5 1 “Unless the court orders otherwise, the moving party must attach the proposed amended 2 pleading to a motion seeking leave of the court to file an amended pleading. The proposed amended 3 pleading must be complete in and of itself without reference to the superseded pleading and must 4 include copies of all exhibits referred to in the proposed amended pleading.” LR 15-1(a) (emphasis 5 added). 6 In addition, “[t]he court shall review, before docketing, if feasible or, in any event, as soon 7 as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from 8 a governmental entity or office or employee of a governmental entity.” 28 U.S.C. § 1915A(a). “On 9 review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the 10 complaint, if the complaint-- (1) is frivolous, malicious, or fails to state a claim upon which relief 11 may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief.” 12 28 U.S.C. § 1915A(b)(1)-(2). 13 Dismissal of a complaint for failure to state a claim upon which relief may be granted is 14 provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. § 1915(e)(2)(B)(ii) and 15 28 U.S.C. § 1915A(b)(1) track that language. Thus, when reviewing the adequacy of a complaint 16 under 28 U.S.C. § 1915(e)(2)(B)(ii) or 28 U.S.C. § 1915A(b)(1), the court applies the same 17 standard as is applied under Rule 12(b)(6). See e.g. Watison v. Carter, 668 F.3d 1108, 1112 (9th 18 Cir. 2012). Review under 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Lab. 19 Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000) (citation omitted). 20 In reviewing the complaint under this standard, the court must accept as true the 21 allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve all doubts 22 in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 23 Allegations in pro se complaints are “held to less stringent standards than formal pleadings drafted 6 1 by lawyers[.]” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation marks and citation 2 omitted). 3 A complaint must contain more than a “formulaic recitation of the elements of a cause of 4 action,” it must contain factual allegations sufficient to “raise a right to relief above the speculative 5 level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “The pleading must contain 6 something more … than … a statement of facts that merely creates a suspicion [of] a legally 7 cognizable right of action.” Id. (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure § 8 1216, at 235-36 (3d ed. 2004)). At a minimum, a plaintiff should state “enough facts to state a 9 claim to relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 10 678 (2009). 11 A dismissal should not be without leave to amend unless it is clear from the face of the 12 complaint that the action is frivolous and could not be amended to state a federal claim, or the 13 district court lacks subject matter jurisdiction over the action. See Cato v. United States, 70 F.3d 14 1103, 1106 (9th Cir. 1995); O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). 15 III. DISCUSSION 16 A. Leave to Amend 17 The court finds, and Defendants agree, that Plaintiff shall be given leave to amend to add 18 Walsh as a defendant. To that end, Plaintiff's motion is granted; however, as will be discussed in 19 more detail below, the court will require Plaintiff to file a new pleading that is complete in and of 20 itself and encompasses all of the defendants, claims and allegations that Plaintiff has been allowed 21 to proceed with on screening (including the court's findings on screening of the proposed amended 22 supplemental complaint below). 23 7 1 Plaintiff will not be proceeding against Deputy Attorney General Ms. Hardcastle, as she is 2 not named a defendant in the proposed amended pleading and her name is only mentioned briefly 3 in passing in the proposed pleading. 4 Finally, Plaintiff will be given 30 days to from the date of this Order to file his second 5 amended complaint. That will also be the deadline for plaintiff to identify Doe 2 as Plaintiff has 6 had sufficient time to conduct discovery to ascertain the identity of this defendant. If Doe 2 is not 7 named in the second amended complaint, Doe 2 will be dismissed from this action without 8 prejudice. 9 B. Screening 10 1. Count IV 11 Plaintiff alleges that he learned in April 2018 that an October 2017 disciplinary charge by 12 Psych Nurse Danielle Richards was a typical form of retaliation Richards would carry out on behalf 13 of Woods and Kyle against inmate grievances or lawsuits against NNCC staff. He alleges that the 14 charge was false and made up that Plaintiff was interfering with her duties. He avers that Ownsby 15 advised Plaintiff as much, and that since learning of Plaintiff's grievances and lawsuit since 2017, 16 the head psychologist Kyle had been creating and encouraging creation of misdiagnoses of some 17 of Plaintiff's mental health conditions (in collusion with Pence and Wing) on PTSD. He claims 18 this was done to minimize or eliminate the appearance of a need for PTSD treatment despite 19 decades of diagnoses and treatment for PTSD. He asserts he has been denied counseling for PTSD 20 and related problems because of this interference. Plaintiff maintains that Ownsby was in a position 21 to prevent this, but took no action. 22 /// 23 /// 8 1 Then, Plaintiff alleges that in July 2018, when he refused to settle this lawsuit with defense 2 counsel Deputy Attorney General Hardcastle, Lisa Walsh ordered Plaintiff locked up in 3 administrative segregation on an invalid custody points issue, and made numerous threats to send 4 him on retaliatory transfers from NNCC if he would not cease litigation and grievances at NNCC. 5 He was subsequently released from administrative segregation, pending what he claims was an 6 invalid punitive transfer to ESP. 7 Plaintiff states a colorable retaliation claim against Richards, Woods, Kyle, and Ownsby 8 based on allegations that disciplinary charges were filed against him in retribution for filing 9 grievances and lawsuits against NDOC staff. In addition, he states a colorable Eighth Amendment 10 claim against Ownsby, Kyle, Woods, Pence, and Wing based on allegations that they engaged in 11 knowing misdiagnoses so Plaintiff would not receive treatment for his PTSD. 12 Finally, Plaintiff states a colorable retaliation claim against Walsh based on allegations that 13 she locked him up in administrative segregation when he refused to settle this case, and threatened 14 a retaliatory and punitive transfer to ESP if he did not cease filing grievances and lawsuits. It 15 appears, however, that there is some overlap among these allegations and the allegations asserted 16 against Walsh and Doe 2 in Count VI. When Plaintiff files his second amended complaint, he 17 should include the allegations against Walsh from Count IV with the allegations against Walsh 18 and Doe 2 in Count VI, to create a single retaliation claim with respect to these allegations. 19 Plaintiff should be advised that if Ownsby is not served by April 5, 2019, Ownsby will be 20 dismissed from this action without prejudice under Federal Rule of Civil Procedure 4(m). (See 21 ECF No. 76.) 22 /// 23 /// 9 1 2. Count V 2 Plaintiff alleges that while attempting to fully exhaust additional grievances on defendants 3 Woods, Kyle, Pence, Ownsby, and Richards, they severely restricted his access to mental health 4 services at NNCC to strictly non-female staff for counseling. He claims this resulted in his only 5 being able to consult with male mental health staff member William Pence. He asserts there was 6 no legitimate medical reason given for this, and it made access to mental health care constrained. 7 He asserts that Pence made Plaintiff deliberately uncomfortable about homosexuality, and that 8 Kyle, Woods, and Pence knew Plaintiff suffered mental pain, reactions, and panic attacks in 9 response to Pence, and thereby discouraged and dissuaded Plaintiff from obtaining mental health 10 treatment. He alleges this caused him months of increased anxiety, nightmares, chest pain and 11 stigma, because he as the only prisoner under such restrictions. He avers that this was to punish 12 grievances and litigation. 13 Plaintiff states colorable Eighth Amendment and retaliation claims against Woods, Kyle, 14 Pence, Ownsby and Richards based on allegations that they restricted him to seeing only non15 female mental health staff members because of his protected conduct, which resulted in his access 16 to mental health care being severely constrained. Again, if Ownsby is not served by April 5, 2019, 17 he will be dismissed from this action without prejudice. 18 3. Count VI 19 Plaintiff alleges that Lisa Walsh colluded with defendants, their counsel, Deputy Attorney 20 General Hardcastle, and Doe 2, on July 16, 2018, to contrive a false classification score in order 21 to lock Plaintiff up in administrative segregation for refusing to settle this case and threatened to 22 ship him to ESP. He describes ESP as a high custody and dangerous facility which has little or no 23 mental health programs as compared to other facilities. Plaintiff also alleges he has enemies at 10 1 ESP, which Walsh refused to acknowledge. He claims this was a threat of a hostile, retaliatory 2 transfer if he did not cease with grievances and lawsuits. He was let out from administrative 3 segregation days later after staff admitted the lock-up was unwarranted, but was sent to austere 4 housing unit 4. In that unit, he had less access to legal calls and other privileges. Plaintiff also 5 asserts that after refusing to stop filing grievances and litigation, Walsh and Doe 2 again locked 6 Plaintiff in administrative segregation on the basis of invalid, anonymous kites threatening him 7 without conducting a proper investigation. He states that he was sent to SDCC, a facility that his 8 classification notes prohibit him from being sent to. He claims this led to hospitalization and 9 trauma. 10 Plaintiff states a colorable retaliation claim against Walsh and Doe 2. Again, Plaintiff does 11 not include Deputy Attorney General Hardcastle as a defendant; therefore, the claim will not 12 proceed against her. Plaintiff may proceed against Doe 2 for now, but must identify Doe 2 in the 13 second amended complaint or Doe 2 will be dismissed without prejudice. 14 15 IV. CONCLUSION (1) Plaintiff's motion for leave to amend (ECF No. 66) is GRANTED IN PART AND 16 DENIED IN PART. Plaintiff is GRANTED leave to amend to state the claims asserted in Counts 17 IV, V and VI in the proposed amended supplemental complaint, as screened by the court above; 18 however, Plaintiff must file a single pleading, titled the "SECOND AMENDED COMPLAINT." 19 The second amended complaint shall contain ALL of the defendants, claims and allegations which 20 the court has allowed Plaintiff to proceed on screening the amended, supplemental and first 21 amended supplemental complaint. It must not include any additional allegations, claims or parties. 22 It must not include parties, claims or allegations that have been dismissed. To make this very clear, 23 11 1 Plaintiff's second amended complaint may include the following claims from the amended 2 complaint and proposed amended supplemental complaint: 3 (a) The Eighth Amendment deliberate indifference to serious medical needs claim (from 4 the amended complaint) against Woods, Kyle, and Aranas, based on allegations that these 5 defendants have deprived him of adequate psychotherapy, counseling and rehabilitation, in 6 contravention of prior orders and treatment he received for his various mental health issues (both 7 at SNAMHS and previously at HDSP). 8 (b) The RLUIPA claim (from the amended complaint) against Woods, Kyle and Aranas, 9 based on allegations that they would not allow Plaintiff to obtain therapy unless he cut his hair and 10 beard, in violation of the tenets of his orthodox Jewish faith. 11 (c) The retaliation claim (from Count IV of the proposed amended supplemental complaint) 12 against Richards, Woods, Kyle and Ownsby, based on allegations that disciplinary charges were 13 filed against him in retribution for filing grievances and lawsuits against NDOC staff. If Ownsby 14 is not served by April 5, 2019, the action will not proceed against Ownsby, and he will be dismissed 15 from this action without prejudice. 16 (d) The Eighth Amendment deliberate indifference to serious medical needs claim (from 17 Count IV of the proposed amended supplemental complaint) against Ownsby, Kyle, Woods, 18 Pence, and Wing, based on allegations they engaged in knowing misdiagnoses so Plaintiff would 19 not receive treatment for his PTSD. Again, if Ownsby is not served by April 5, 2019, the action 20 will not proceed against Ownsby, and he will be dismissed from this action without prejudice. 21 (e) Eighth Amendment and retaliation claims against Woods, Kyle, Pence, Ownsby, and 22 Richards (from Count V of the proposed amended supplemental complaint) based on allegations 23 12 1 that they restricted him to seeing only non-female mental health staff members because of his 2 protected conduct, which resulted in his access to mental health care being severely constrained. 3 (f) A retaliation claim against Walsh and Doe 2 (from Counts IV and VI of the proposed 4 amended supplemental complaint) based on allegations that they contrived a false classification 5 score to lock Plaintiff up in administrative segregation after he refused to settle this case, and 6 threatened him with a punitive transfer to ESP. In addition, after being released from 7 administrative segregation, he alleges he received a retaliatory transfer to SDCC, which his 8 classification notes precluded, on the basis of a false pretext of anonymous threatening kites 9 against him which were not properly investigated. Plaintiff must identify Doe 2 in the second 10 amended complaint or Doe 2 will be dismissed without prejudice from this action. If Doe 2 is not 11 identified by that time, the dismissal will be without prejudice, but without leave to amend in this 12 action as Plaintiff will have had ample time to conduct discovery to ascertain Doe 2's identity. 13 Plaintiff can bring another action if Doe 2 is subsequently identified, but should be mindful of the 14 two-year statute of limitations applicable to section 1983 civil rights claims in Nevada. 15 (2) Plaintiff has 30 days from the date of this order to file the second amended complaint. 16 If Plaintiff wishes to proceed against Doe 1, that defendant must be identified and named in the 17 second amended complaint, or Doe 2 will be dismissed. To reiterate, Plaintiff may not incorporate 18 by reference any prior pleading. Any allegations, parties, or requests for relief from a prior 19 complaint that are not carried forwarded in the second amended complaint will no longer be before 20 the court. If Plaintiff fails to file a second amended complaint within the 30 days, the action may 21 be dismissed. 22 23 13 1 (3) Within 14 days of the filing of the second amended complaint, the Attorney General's 2 Office must file a notice with the court advising of those defendants for whom it accepts service, 3 and filing the last known address under seal for those defendants for whom it cannot accept service. 4 (4) 5 file a responsive pleading. 6 (5) The court will issue a revised scheduling order; however, this case was originally filed Within 21 days of the filing of the second amended complaint, the defendants must 7 in July of 2017, and so the court will not be extending the deadline to add parties or amend (except 8 that Plaintiff has 30 days from the date of this order to name Doe 2). As such, any further request 9 for leave to amend will not be received favorably, and must establish the more stringent good cause 10 standard applicable to a motion for leave to amend filed after the expiration of the Rule 16 11 scheduling order deadline. See Fed. R. Civ. P. 16(b)(4); AmerisourceBergen Corp. v. Dialysist 12 West, Inc., 465 F.3d 946, 952 (9th Cir. 2006). 13 IT IS SO ORDERED. 14 Dated: March 20, 2019. 15 16 _________________________________ William G. Cobb United States Magistrate Judge 17 18 19 20 21 22 23 14
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