Mason v. Gillespie et al

Filing 3

ORDER Granting 1 Motion/Application for Leave to Proceed in forma pauperis. Clerk of Court shall file complaint. The Clerk shall send a copy of this order to the attention of Albert G. Peralta, Chief of Inmate Services for the Nevada Department of Prisons, P.O. Box 7011, Carson City, NV 89702. IT IS FURTHER ORDERED that 2 Plaintiff's Motion to Appoint Counsel is DENIED. IT IS FURTHER ORDERED that the complaint shall proceed on plaintiff's claim of being subjected to constant i llumination. Clerk of Court shall issue summons and deliver, along with complaint, to the US Marshal for service. The Clerk also shall send to plaintiff one USM-285 form, one copy of the complaint and a copy of this order. Signed by Judge Andrew P. Gordon on 5/1/14. (Copies have been distributed pursuant to the NEF - cc: Chief of Inmate Services and plaintiff - EDS)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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RICHARD MASON,

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Plaintiff,

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vs.

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Case No. 2:13-cv-01990-APG-VCF

DOUG GILLESPIE,

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ORDER

Defendant.

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Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has
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submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to
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proceed in forma pauperis.
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I. In Forma Pauperis Application
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Before the Court is plaintiff’s application to proceed in forma pauperis. Based on the
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information regarding plaintiff's financial status, the Court finds that plaintiff is not able to pay an
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initial installment payment towards the full filing fee pursuant to 28 U.S.C. § 1915. Plaintiff will,
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however, be required to make monthly payments towards the full $350.00 filing fee when he has
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funds available.
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II. Screening Standard
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Federal courts must conduct a preliminary screening in any case in which a prisoner seeks
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redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C.
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§ 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims

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that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek

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monetary relief from a defendant who is immune from such relief. See 28 U.S.C. §

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1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica

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Police Dep’t, 901 F.2d. 696, 699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a

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plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of

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the United States was violated, and (2) that the alleged violation was committed by a person acting

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under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation

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Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner’s claim, “if the allegation of

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poverty is untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief

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may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28

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U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be

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granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same

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standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint.

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When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend

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the complaint with directions as to curing its deficiencies, unless it is clear from the face of the

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complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70

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F.3d. 1103, 1106 (9th Cir. 1995).

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Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v.

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Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a

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claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the

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claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.

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1999). In making this determination, the court takes as true all allegations of material fact stated in

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the complaint, and the court construes them in the light most favorable to the plaintiff. See

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Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are

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held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449

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U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). While the standard
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under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than

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mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A

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formulaic recitation of the elements of a cause of action is insufficient. Id.; see Papasan v. Allain,

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478 U.S. 265, 286 (1986).

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Additionally, a reviewing court should “begin by identifying pleadings [allegations] that,

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because they are no more than mere conclusions, are not entitled to the assumption of truth.”

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the framework

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of a complaint, they must be supported with factual allegations.” Id. “When there are well-pleaded

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factual allegations, a court should assume their veracity and then determine whether they plausibly

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give rise to an entitlement to relief.” Id. “Determining whether a complaint states a plausible claim

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for relief [is] a context-specific task that requires the reviewing court to draw on its judicial

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experience and common sense.” Id.

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Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte

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if the prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on

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legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or

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claims of infringement of a legal interest which clearly does not exist), as well as claims based on

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fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490

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U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

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III. Complaint in the Instant Action

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Plaintiff alleges that during his incarceration at the Clark County Detention Center’s satellite

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facility, he was subjected to constant illumination, with the lights on 24 hours a day. Plaintiff, who

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was a pretrial detainee at the time, alleges that he was subjected to constant illumination from

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March 16, 2013 through June 4, 2013. Plaintiff alleges that defendant Gillespie failed to provide

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appropriate lighting and also failed to train his staff to provide appropriate lighting. Plaintiff seeks

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monetary relief.

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A pretrial detainee’s right to be free from punishment is grounded in the Due Process

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Clause, but courts borrow from Eighth Amendment jurisprudence when analyzing the rights of

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pretrial detainees. See Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008);
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Gibson v. County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002); Frost v. Agnos, 152 F.3d 1124,

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1129 (9th Cir. 1998); Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996); Anderson v. County of

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Kern, 45 F.3d 1310, 1312-13 (9th Cir. 1995). “‘Adequate lighting is one of the fundamental

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attributes of “adequate shelter” required by the Eighth Amendment.’ Moreover, ‘[t]here is no

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legitimate penological justification for requiring [inmates] to suffer physical and psychological

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harm by living in constant illumination.’” Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996)

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(citations omitted; brackets in original), amended by 135 F.3d 1318 (9th Cir. 1998); see also

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Grenning v. Miller-Stout, 739 F.3d 1235, 1238-39 (9th Cir. 2014); Hoptowit v. Spellman, 753 F.2d

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779, 783 (9th Cir. 1985). Accordingly, plaintiff states a colorable claim in alleging that defendant

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violated his constitutional rights in subjecting him to constant illumination.

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IV. Motion for Appointment of Counsel

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Plaintiff has filed a motion for the appointment of counsel. (ECF No. 2). A litigant in a

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civil rights action does not have a Sixth Amendment right to appointed counsel. Storseth v.

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Spellman, 654 F.2d 1349, 13253 (9th Cir. 1981). In very limited circumstances, federal courts are

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empowered to request an attorney to represent an indigent civil litigant. The circumstances in

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which a court will make such a request, however, are exceedingly rare, and the court will make the

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request under only extraordinary circumstances. United States v. 30.64 Acres of Land, 795 F.2d

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796, 799-800 (9th Cir. 1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In the

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instant case, the Court does not find exceptional circumstances that warrant the appointment of

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counsel. The motion for appointment of counsel is denied.

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V. Conclusion

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IT IS THEREFORE ORDERED that plaintiff's application to proceed in forma pauperis

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(ECF No. 1) without having to prepay the full filing fee is GRANTED. The Clerk of Court

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SHALL FILE the complaint. (ECF No. 1-1). Plaintiff shall not be required to pay an initial

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installment fee. Nevertheless, the full filing fee shall still be due, pursuant to 28 U.S.C. § 1915, as

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amended by the Prisoner Litigation Reform Act of 1996. The movant herein is permitted to

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maintain this action to conclusion without the necessity of prepayment of fees or costs or the giving

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of security therefor. This order granting in forma pauperis status shall not extend to the issuance of

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subpoenas at government expense.

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IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the

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Prisoner Litigation Reform Act of 1996, the Nevada Department of Corrections shall pay to the

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Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposits

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to the account of Richard Mason, #1103649 (in months that the account exceeds $10.00) until the

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full $350 filing fee has been paid for this action. The Clerk shall send a copy of this order to the

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attention of Albert G. Peralta, Chief of Inmate Services for the Nevada Department of Prisons,

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P.O. Box 7011, Carson City, NV 89702.

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IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise

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unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by the

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Prisoner Litigation Reform Act of 1996.

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IT IS FURTHER ORDERED that plaintiff’s motion for the appointment of counsel (ECF
No. 2) is DENIED.
IT IS FURTHER ORDERED that the complaint SHALL PROCEED on plaintiff’s claim
of being subjected to constant illumination.
IT IS FURTHER ORDERED that the Clerk of Court SHALL ISSUE summons for one

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(1) defendant, AND DELIVER THE SAME, along with the complaint (ECF No. 1-1), to the U.S.

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Marshal for service. The Clerk also SHALL SEND to plaintiff one (1) USM-285 form, one copy

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of the complaint and a copy of this order. Plaintiff shall have thirty (30) days within which to

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furnish to the U.S. Marshal the required USM-285 forms with relevant information as to each

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defendant on each form. Within twenty (20) days after receiving from the U.S. Marshal a copy of

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the USM-285 forms showing whether service has been accomplished, plaintiff must file a notice

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with the Court if defendant was not served. If plaintiff wishes to have service again attempted on

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an unserved defendant, then a motion must be filed with the Court identifying the unserved

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defendant and specifying a more detailed name and/or address for said defendant, or whether some

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other manner of service should be attempted.

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IT IS FURTHER ORDERED that henceforth, plaintiff shall serve upon defendants or, if

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appearance has been entered by counsel, upon the attorney(s), a copy of every pleading, motion or

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other document submitted for consideration by the Court. Plaintiff shall include with the original

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paper submitted for filing a certificate stating the date that a true and correct copy of the document

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was mailed to the defendant or counsel for the defendant. The Court may disregard any paper

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received by a district judge or magistrate judge which has not been filed with the clerk, and any

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paper received by a district judge, magistrate judge or the clerk which fails to include a certificate

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of service.

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1st
Dated this ______ day of May, 2014.

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UNITED STATES DISTRICT JUDGE
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