Lyons v. Dicus et al

Filing 3

SCREENING ORDER Granting Plaintiff's 1 Motion/Application for Leave to Proceed in forma pauperis. Plaintiff shall not be required to pay an initial installment fee but the full filing fee shall still be due. The Clerk of the Court shall f ile the 1 -1 Complaint. The Complaint is dismissed in its entirety with prejudice as amendment would be futile. This Court certifies that any in forma pauperis appeal from this order would not be taken in good faith. FURTHER ORDERED that the Clerk of the Court shall enter judgment accordingly. Signed by Judge Andrew P. Gordon on 3/16/2015. (Copies have been distributed pursuant to the NEF - mailed to Albert G. Peralta - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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PHILLIP J. LYONS,

Case No. 2:14-cv-1813-APG-VCF

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Plaintiff,

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v.

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SCREENING ORDER

A. DICUS et al.,

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Defendants.

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

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Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. §

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1983 and has filed an application to proceed in forma pauperis. (Dkt. # 1, 1-1). 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.

IN FORMA PAUPERIS APPLICATION

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Before the Court is Plaintiff’s application to proceed in forma pauperis. (Dkt. #1).

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Based on the information regarding Plaintiff’s financial status, the Court finds that

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Plaintiff is not able to pay an initial installment payment toward the full filing fee pursuant

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to 28 U.S.C. § 1915. Plaintiff will, however, be required to make monthly payments

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toward the full $350.00 filing fee when he has 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

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prisoner seeks redress from a governmental entity or officer or employee of a

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governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify

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any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

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claim upon which relief may be granted or seek monetary relief from a defendant who is

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immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however,

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must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

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Cir. 1990).

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two

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essential elements: (1) the violation of a right secured by the Constitution or laws of the

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United States, 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

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

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

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claim on which relief may be granted, or seeks monetary relief against a defendant who

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is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for

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failure to state a claim upon which relief can be granted is provided for in Federal Rule

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of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when

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reviewing the adequacy of a complaint or an amended complaint.

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

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

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the complaint that the deficiencies could not be cured by amendment. See Cato v.

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United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

When a court

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

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Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for

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failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of

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facts in support of the claim that would entitle him or her to relief. See Morley v. Walker,

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175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true

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all allegations of material fact stated in the complaint, and the court construes them in

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the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957

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(9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards

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than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980).

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While the standard under Rule 12(b)(6) does not require detailed factual allegations, a

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plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause

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of action is insufficient. Id.

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

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that, because they are no more than mere conclusions, are not entitled to the

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assumption of truth.”

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conclusions can provide the framework of a complaint, they must be supported with

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factual allegations.”

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should assume their veracity and then determine whether they plausibly give rise to an

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entitlement to relief.” Id. “Determining whether a complaint states a plausible claim for

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

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judicial experience and common sense.” Id.

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

Id.

“While legal

“When there are well-pleaded factual allegations, a court

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

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

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

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defendants who are immune from suit or claims of infringement of a legal interest which

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clearly does not exist), as well as claims based on fanciful factual allegations (e.g.,

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fantastic or delusional scenarios).

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(1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

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III.

See Neitzke v. Williams, 490 U.S. 319, 327-28

SCREENING OF COMPLAINT

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

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while Plaintiff was incarcerated at Southern Desert Correctional Center (“SDCC”). (Dkt.

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#1-1 at 1).

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Williams, Sr., and NDOC Director James G. Cox. (Id. at 2). Plaintiff alleges two counts

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and seeks monetary damages and injunctive relief. (Id. at 19, 24).

Plaintiff sues Defendants Correctional Officer A. Dicus, Warden Brian

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The complaint alleges the following: On January 16, 2014, Plaintiff and fellow

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inmate, Martinez Aytch, asked Dicus to release them from Unit 1 in order to pick up their

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legal mail in the law library. (Id. at 3). Dicus asked Correctional Valverde about the

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matter and Valverde stated that he had already released the Unit 1 prisoners for the law

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library. (Id.) Plaintiff and Aytch informed the officers that they were both scheduled for

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1:30 p.m. legal mail pick up, that it was only 1:25 p.m., and that they had heard no prior

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announcement for the 1:30 p.m. law library appointments. (Id. at 3-4). Dicus refused to

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release Plaintiff and Aytch to pick up their mail. (Id. at 4). Plaintiff and Aytch requested

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grievances to report the matter because Dicus had developed a routine of refusing to

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release prisoners for institutional appointments. (Id.) This worried Plaintiff because

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Williams and Cox had promulgated a practice that subjected prisoners to disciplinary

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action for not showing up to scheduled institutional appointments. (Id.)

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In response to the grievance request, Dicus said, “I don’t give a fuck about a

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grievance” and told Valverde to “bring a whole stack of grievances.” (Id. at 4-5) When

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Valverde returned with the grievances, Dicus took some of the grievances, started to

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hand Plaintiff and Aytch the grievances, and said, “Here, go write your fuckin’ snitch

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kites.”

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prisoners hanging out on [the] Unit 1-A wing” and intimated to “all those in earshot that

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Plaintiff and Aytch were snitches for attempting to utilize the prison grievance process.”

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(Id.) Dicus knew that being viewed as a “snitch” in prison “posed a substantial risk to a

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prisoner’s health and safety.” (Id.) Plaintiff declined to accept the grievance from Dicus

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because he was concerned what the onlooking prisoners might think about accepting a

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“snitch kite.” (Id. at 5-6).

(Id. at 5).

Dicus made this statement in front of a “vast number of other

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Aytch accepted a grievance and submitted an emergency grievance regarding

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Dicus’s conduct for refusing to release him for mail pick up and for the snitch kite

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comment. (Id. at 6). One of Dicus’s superiors denied Aytch’s grievance. (Id.) Plaintiff

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witnessed Dicus confront Aytch. (Id. at 6-7). Plaintiff heard Aytch, who was African-

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American, ask Dicus, “What did you call me, a nigger? Did you call me a nigger?” (Id.

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at 7). Dicus responded affirmatively. (Id.) Dicus had his fellow officers remove Aytch

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from the unit. (Id.) Dicus searched Aytch’s cell and confiscated his television. (Id. at 7-

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8). Aytch told Plaintiff that Dicus’s fellow officers had locked Aytch in a holding cell for

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several hours while Dicus searched his cell. (Id. at 8). One week after Aytch had

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submitted the grievance, prison officials transferred him to a different institution. (Id. at

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11).

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On January 17, 2014, Plaintiff saw Williams and personally informed Williams of

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Dicus’s conduct in refusing to release Plaintiff and Aytch for legal mail pick up,

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intimating to other prisoners that Plaintiff and Aytch were snitches for seeking to use the

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grievance process, for calling Aytch a nigger, and for removing Aytch from his cell for

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several hours to search his cell for filing a grievance.

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acknowledged that he had received complaints about Dicus but did not do anything

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other than tell Plaintiff to do whatever Dicus says. (Id. at 9).

(Id. at 8-9).

Williams

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That same day, Plaintiff learned that Arinza Smith, another inmate, had

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submitted a grievance against Dicus for refusing to release him to an educational

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appointment. (Id.) The next day, Dicus and his fellow officers shook down all the cells

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but spent extra time in Smith’s cell patronizing him about his religious preference. (Id.)

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Smith was African-American. (Id.)

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In Count I, Plaintiff alleges First and Eighth Amendment violations against Dicus

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for denying Plaintiff the right to file prison grievances and by endangering Plaintiff’s

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health and safety by referring to prison grievances as “snitch kites” in the presence of

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other prisoners. (Id. at 17). In Count II, Plaintiff alleges First and Eighth Amendment

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violations against Williams and Cox for failing to take effective steps to correct or

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eradicate Dicus’s retaliatory and abusive behavior toward SDCC prisoners. (Id.)

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The Court interprets these allegations as claims for unsafe prison conditions,
retaliation, and denial of access to the courts.

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A.

Unsafe Prison Conditions

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Under the Eighth Amendment, prison officials have a duty to protect prisoners

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from violence at the hands of other prisoners. Farmer v. Brennan, 511 U.S. 825, 833

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(1994). To establish a violation of this duty, the prisoner must establish that prison

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officials were deliberately indifferent to serious threats to the inmate’s safety. Id. at 834.

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To demonstrate that a prison official was deliberately indifferent to a serious threat to

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the inmate’s safety, the prisoner must show that “the official [knew] of and disregard[ed]

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an excessive risk to inmate . . . safety; the official must both be aware of facts from

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which the inference could be drawn that a substantial risk of serious harm exists, and

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[the official] must also draw the inference.” Id. at 837. Prison officials may not escape

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liability because they cannot, or did not, identify the specific source of the risk; the

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serious threat can be one to which all prisoners are exposed. Id. at 843.

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A prisoner seeking a remedy for unsafe conditions does not have to await a

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tragic event such as an actual assault before obtaining relief. Id. at 845. “An inmate

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seeking an injunction on the ground that there is a contemporary violation of a nature

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likely to continue must adequately plead such a violation.” Id. at 845-46 (quotations and

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citation omitted).

Plaintiff must plead that prison officials are “knowingly and

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unreasonably disregarding an objectively intolerable risk of harm, and that they will

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continue to do so.” Id. at 846.

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The Court finds that Plaintiff fails to state a claim for unsafe prison conditions

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based on the allegation that Dicus referred to inmate grievances as “snitch kites.”

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There are no allegations in the complaint that any inmate thought Plaintiff was a snitch

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for requesting a grievance to complain about Dicus’s actions nor are there any

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allegations that Aytch, who took a “snitch kite”, had been threatened by any inmates for

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filing a grievance. There are no allegations in the complaint which demonstrate that

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there was a serious threat to Plaintiff or Aytch’s lives from any inmates from the use of

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the term “snitch kite.”

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amendment would be futile.

As such, the Court dismisses this claim with prejudice, as

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B.

Retaliation

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Prisoners have a First Amendment right to file prison grievances and to pursue

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civil rights litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.

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2004). “Without those bedrock constitutional guarantees, inmates would be left with no

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viable mechanism to remedy prison injustices. And because purely retaliatory actions

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taken against a prisoner for having exercised those rights necessarily undermine those

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protections, such actions violate the Constitution quite apart from any underlying

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misconduct they are designed to shield.” Id.

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To state a viable First Amendment retaliation claim in the prison context, a

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plaintiff must allege: “(1) [a]n assertion that a state actor took some adverse action

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against an inmate (2) because of (3) that prisoner’s protected conduct, and that such

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action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal.” Id. at 567-68.

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The Court finds that Plaintiff fails to state a retaliation claim. Even if requesting a

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grievance, but not accepting the grievance, is considered protected conduct, Plaintiff

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has not established that Dicus engaged in an adverse action against Plaintiff for that

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request.

As discussed above, Dicus’s use of the term “snitch kite” cannot be deemed

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adverse in this case because Plaintiff has not alleged that there was any serious threat

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from any inmates when Dicus used that term in reference to Plaintiff’s request. As

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such, Plaintiff fails to state a claim for retaliation. The Court dismisses this claim with

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prejudice, as amendment would be futile.

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C.

Denial of Access to the Courts

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Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518

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U.S. 343, 346 (1996). To establish a violation of the right of access to the courts, a

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prisoner must establish that he or she has suffered “actual injury.” Id. at 349. The

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actual-injury requirement mandates that an inmate “demonstrate that a nonfrivolous

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legal claim had been frustrated or was being impeded.”

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meaningful access to the courts extends to established prison grievance procedures.”

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Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir. 1995), overruled on other grounds by

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Shaw v. Murphy, 532 U.S. 223, 230 n.2 (2001).

Id. at 353.

“The right of

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The Court finds that Plaintiff fails to state a colorable claim for denial of access to

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the courts. Based on the previous discussions, the Court does not find that the use of

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the term “snitch kite” prevented Plaintiff from accepting a grievance from Dicus and

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reporting him. Additionally, Plaintiff alleges that Aytch filed a grievance against Dicus

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without any threats from inmates.

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prejudice, as amendment would be futile.

As such, the Court dismisses this claim with

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IV.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that Plaintiff’s application to proceed

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in forma pauperis (Dkt. #1) without having to prepay the full filing fee is GRANTED.

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Plaintiff shall not be required to pay an initial installment fee. Nevertheless, the full filing

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

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Litigation Reform Act.

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conclusion without the necessity of prepayment of fees or costs or the giving of security

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

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of subpoenas at government expense.

The movant herein is permitted to maintain this action to

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

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

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the Clerk of the United States District Court, District of Nevada, 20% of the preceding

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month’s deposits to the account of PHILLIP J. LYONS, #33833 (in months that the

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account exceeds $10.00) until the full $350 filing fee has been paid for this action. The

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Clerk shall send a copy of this order to the attention of Albert G. Peralta, Chief of

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Inmate Services for the Nevada Department of Prisons, P.O. Box 7011, Carson City,

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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

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amended by the Prisoner Litigation Reform Act.

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IT IS FURTHER ORDERED that the Clerk of the Court shall file the complaint
(Dkt. #1-1).
IT IS FURTHER ORDERED that the complaint is dismissed in its entirety, with
prejudice, as amendment would be futile.

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IT IS FURTHER ORDERED that this Court certifies that any in forma pauperis

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appeal from this order would not be taken “in good faith” pursuant to 28 U.S.C. §

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1915(a)(3).

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IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
Dated: March 16, 2015.

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UNITED STATES DISTRICT JUDGE

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