Nicolai v. Higgins, et al.

Filing 5

INITIAL REVIEW ORDER BY SCREENING JUDGE - IT IS ORDERED that the Clerk of Court shall transfer this entire matter to the appropriate United States District Court in Texas. Signed by Judge David C. Nye. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

Case 1:21-cv-00234-DCN Document 5 Filed 07/19/21 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
FRANK LESLIE NICOLAI III,
Plaintiff,
vs.

Case No. 1:21-cv-00234-DCN
INITIAL REVIEW ORDER BY
SCREENING JUDGE

TIM HIGGINS, STEPHEN GRILL,
MONTY HANSEN, OFFICER MS.
PORTELLA, OFFICER JOHN DOE,
THE GEO GROUP, INC., ADAM
MARTINEZ, WAYMON BARRY,
WARDEN K. KLINE, and
CORECIVIC, INC.;
Defendants.
Plaintiff Frank Leslie Nicolai III is an Idaho Department of Correction (IDOC)
prisoner who brings a civil rights lawsuit based on his temporary residency in a Texas
privatized prison facility operated by the GEO Group, Inc., as part of an IDOC plan to
alleviate overcrowding in its prisons. He now resides in an Arizona prison contracted to
house IDOC prisoners.
Having reviewed the record, the Court enters the following Order transferring this
case to the appropriate United States District Court in Texas for personal jurisdiction and
venue reasons.

INITIAL REVIEW ORDER BY SCREENING JUDGE - 1

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REVIEW OF COMPLAINT
1.

Standard of Law
The Prison Litigation Reform Act (PLRA)1 requires the Court to screen all pro se

prisoner complaints to determine whether they have stated a claim upon which relief can
be granted before such complaints are served on the defendants. 28 U.S.C. §§ 1915 &
1915A. The Court must dismiss a complaint or any portion thereof that states a frivolous
or malicious claim, that fails to state a claim upon which relief may be granted, or that
seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §
1915A.
Federal Rule of Civil Procedure 8(a)(2) requires litigants to set forth “a short and
plain statement of the claim showing that the pleader is entitled to relief,” in order to “give
the defendant fair notice of what the ... claim is and the grounds upon which it rests.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint fails to state a claim for
relief under Rule 8 if the factual assertions in the complaint, taken as true, are insufficient
for the reviewing court plausibly “to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. In other words, although Rule 8 “does not require detailed
factual allegations, ... it demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Id. (internal quotation marks omitted). If the facts pleaded are

1

Pub. L. No. 104-134, 110 Stat. 1321, as amended, 42 U.S.C. § 1997e, et seq.

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“merely consistent with a defendant’s liability,” or if there is an “obvious alternative
explanation” that would not result in liability, the complaint has not stated a claim for relief
that is plausible on its face. Id. at 678, 682 (internal quotation marks omitted).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of rights
protected by the Constitution or created by federal statute proximately caused by conduct
of a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th
Cir. 1991). Vague and conclusory allegations of official participation in civil rights
violations are not sufficient. See Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266,
268 (9th Cir. 1982). Rather, “[l]iability under section 1983 arises only upon a showing of
personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989) (there is no respondeat superior liability under §1983).
2.

Factual Allegations and Personal Participation Considerations
Plaintiff alleges that, on November 6, 2020, Texas correctional officers allowed two

other prisoners to assault him, causing him serious injury. The two other prisoners allegedly
“were paid approximately two thousand dollars in methamphetamine by a third party
whom was acting on information provided by G.E.O. Group Correctional Officers accusing
the plaintiff of being an informant against fellow officers whom were involved in the
distribution of drugs and other contraband to Idaho State Prisoners.” Dkt. 3, p. 8 (verbatim).
As to the Idaho and Arizona officials who are defendants in this action, Plaintiff
alleges only that they are “responsible for the pattern and practice of misconduct discussed
herein.” Id., pp. 5-8. It does not appear that the Complaint alleges any civil rights violations
that occurred in Arizona, and Plaintiff was transferred to Arizona after the assault.
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3.

Personal Jurisdiction and Venue Considerations
Federal due process requires that a nonresident defendant have minimum contacts

with the forum state such that the exercise of personal jurisdiction does not offend
traditional notions of fair play and substantial justice. International Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). To avoid dismissal, a plaintiff must make a prima
facie showing of jurisdictional facts. Lake v. Lake, 817 F.2d 1416, 1420 (9th Cir.1987).
Personal jurisdiction over a nonresident defendant exists if: (1) the nonresident defendant
has some connection with the forum state; (2) the claim arises out of the defendant's
forum-related activities; and (3) the exercise of jurisdiction is reasonable. See Data Disc,
Inc. v. Systems Technology Assoc., Inc., 557 F.2d 1280, 1287 (9th Cir.1977).
Because it appears that the only defendants who personally participated in the
alleged civil rights actions are Texas residents, the Court has determined that it will transfer
this case to the appropriate United States District Court in Texas. Plaintiff alleges that Idaho
officials are responsible for the Texas correctional officers’ actions, without any supporting
facts showing personal participation. There is no respondeat superior liability in Section
1983 actions. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Further, Idaho officials
purposely sought out and contracted with the Texas facility; therefore, it is more fair to
require Idaho officials to respond to a complaint in Texas than it is to require employees
of a Texas prison to respond to a complaint in Idaho.
Proper venue is also a concern when a complaint names out-of-state parties. Civil
rights action may be brought only in “(1) a judicial district in which a substantial part of
the events or omissions giving rise to the claim occurred, or a substantial part of property
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that is the subject of the action is situated, or (2) a judicial district in which any defendant
may be found, if there is no district in which the action may otherwise be brought.” 28
U.S.C. S 1391(b). 28 U.S.C. § 1406(a) (“The district court of a district in which is filed a
case laying venue in the wrong division or district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in which it could have been brought.”).
Anrig v. Ringsby, 603 F.2d 1319 (9th Cir. 1979).
Clearly, the Complaint shows that the District of Idaho is not the “judicial district
in which a substantial part of the events or omissions giving rise to the claim occurred.”
Rather, a district in Texas is the proper venue. In addition, any unrelated claims against
Arizona officials for civil rights violations occurring in Arizona facilities must be brought
in a United States District Court in Arizona
4.

Conclusion
For the foregoing reasons, the Court will transfer this action to Texas, where further
screening of Plaintiff’s Complaint will occur.
ORDER
IT IS ORDERED that the Clerk of Court shall transfer this entire matter to the

appropriate United States District Court in Texas.

DATED: July 19, 2021
_________________________
David C. Nye
Chief U.S. District Court Judge

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