Delosh v. State of Nevada et al

Filing 9

SCREENING ORDER. The complaint is dismissed in its entirety with prejudice. Signed by Judge Andrew P. Gordon on 6/4/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STEVEN L. DELOSH,

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Plaintiff,
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v.
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STATE OF NEVADA et al.,
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Defendants.
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___________________________________ )

2:14-cv-632-APG-GWF
SCREENING ORDER

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Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections

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(“NDOC”), has filed a complaint in state court, which defendants have removed. It appears

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from the documents and the removal statement that removal to federal court was proper. The

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Court now screens Plaintiff’s civil rights complaint pursuant to 28 U.S.C. § 1915A.

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I.

SCREENING STANDARD

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Federal courts must conduct a preliminary screening in any case in which a prisoner

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss

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

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or seek 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.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. §

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1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the

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Constitution or laws of the United States, and (2) that the alleged violation was committed by

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a person acting 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

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

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

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

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relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which

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relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court

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applies the same standard under § 1915 when reviewing the adequacy of a complaint or an

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amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should

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be given leave to amend the complaint with directions as to curing its deficiencies, unless it is

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clear from the face of the complaint that the deficiencies could not be cured by amendment.

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See Cato v. United States, 70 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

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v. Lab. 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

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

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

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complainant are held to less stringent standards than formal pleadings drafted by lawyers. See

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Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not

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require detailed factual allegations, a plaintiff must provide more than mere labels and

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conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation

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of the elements of a cause of action is insufficient. Id.

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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

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framework of a complaint, they must be supported with factual allegations.” Id. “When there

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are well-pleaded factual allegations, a court should assume their veracity and then determine
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whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a

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complaint states a plausible claim for relief . . . [is] a context-specific task that requires the

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reviewing court to draw on its judicial 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

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

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claims based on legal conclusions that are untenable (e.g., claims against defendants who are

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immune from suit or claims of infringement of a legal interest which clearly does not exist), as

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well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios).

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See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d

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795, 798 (9th Cir. 1991).

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II.

SCREENING OF COMPLAINT

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In the complaint, Plaintiff, counseled, sues multiple defendants for events that took place

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while Plaintiff was incarcerated at High Desert State Prison (“HDSP”). (Dkt. #1-2 at 3). Plaintiff

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sues Defendants High Desert State Prison, State of Nevada, State of Nevada Division of

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Prisoners, the NDOC, Brian Sandoval, Ross Miller, Catherine Cortez Masto, James Greg Cox,

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Robert Bannister, Dwight Neven, Dr. Gregory Martin, Dr. Gary Graham, Nurse Mary Eaton,

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Dr. Romeo Aranas, Correctional Officer Michael Ramos, and Correctional Officer Moye. (Id.

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at 3-5). Plaintiff alleges six counts1 and seeks monetary damages, attorney’s fees, and costs.

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(Id. at 15-16). Plaintiff filed his complaint in state court on February 14, 2014. (Id. at 2).

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The complaint alleges the following: On January 28, 2012, Plaintiff was sitting down to

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eat dinner in the chow hall at HDSP when two other inmates began fighting approximately 20

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to 30 yards away from him. (Id. at 7). Moye yelled to the gun tower to “shoot them . . . shoot

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them.” (Id.). All of the inmates immediately laid down on the floor after the correctional officers

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began shooting. (Id.). Ramos “began carelessly and erratically shooting throughout the chow

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Plaintiff alleges: (1) excessive force and deliberate indifference to serious medical
needs; (2) negligence; (3) negligent hiring, training, retention, and supervision; (4) gross
negligence; (5) assault and battery; and (6) respondeat superior. (See Dkt. #1-2).
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hall firing at the masses of inmates instead of at the two involved in the altercation.” (Id.).

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Ramos fired at the inmates who were lying on the ground. (Id.) Plaintiff was struck by several

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bullets and still has some of the bullets embedded into his body today. (Id.). Plaintiff suffers

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“great pain” in his body as a result of the embedded bullets. (Id.).

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The Court notes that Nevada’s personal injury statute of limitations is two years. See

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Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989) (citing Nev. Rev. Stat. § 11.190(4)(c), (e));

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see Wallace v. Kato, 549 U.S. 384, 387 (2007) (holding that federal courts borrow state

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statutes of limitations for personal injury actions in § 1983 suits because § 1983 contains no

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specific statute of limitations). The statute of limitations on Plaintiff’s claims expired on January

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28, 2014. Plaintiff, counseled, filed his complaint on February 14, 2014. As such, Plaintiff’s

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claims are time-barred. The Court dismisses this case in its entirety with prejudice, as

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amendment would be futile. See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687 (9th

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Cir. 1993) (holding that a district court may sua sponte dismiss a complaint as untimely on

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statute of limitations grounds).

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III.

CONCLUSION

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For the foregoing reasons,

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IT IS ORDERED that the complaint (Dkt. #1-2) is dismissed in its entirety with prejudice,

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as amendment would be futile.

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The Clerk of the Court shall enter judgment accordingly.

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Dated:

June 4, 2014.

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_________________________________
United States District Judge

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