Woods, Jr. v. Las Vegas Metropolitan Police Department

Filing 5

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. FURTHER ORDERED that, under 28 U.S.C. § 1915(b)(2), the Clark County Detention Center must pay to the Clerk of the United States District Court, District o f Nevada, 20% of the preceding months deposits to the account of Edwards Woods, #1361888 (in months that the account exceeds $10.00) until the full $350.00 filing fee has been paid for this action. The Clerk is directed to SEND a copy of this order to the CCDC Accounting Supervisor, 330 S. Casino Center Blvd., Las Vegas, NV 89101. FURTHER ORDERED that the amended complaint [ECF No. 2 ] is DISMISSED in its entirety without prejudice and with leave to amend. FURTHER ORDERED that the Clerk of the Court is directed to SEND Woods the approved form for filing a § 1983 complaint, instructions for the same, and a copy of his first amended complaint [ECF No. 2 ]. If Woods chooses to file a second-amended complaint curing thedeficiencies outlined in this order, he must do so by November 6, 2016. Signed by Judge Jennifer A. Dorsey on 10/6/16.(Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Edward Woods,

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Plaintiff

2:16-cv-00371-JAD-CWH
Order Granting Application to Proceed
In Forma Pauperis and Screening
Complaint

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v.

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Sgt. Leavitt, et al.,

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Defendants

[ECF No. 1]
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Pretrial detainee Edward Woods has submitted an amended civil-rights complaint under §

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1983 and an application to proceed in forma pauperis. Woods’s IFP application and the supporting

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financial documentation show that he is not able to pay an initial installment toward the filing fee, so

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I grant him pauper status, screen his complaint, dismiss his claims without prejudice and with

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specific instructions for amendment, and give him until November 6, 2016, to file a second-amended

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complaint curing the deficiencies outlined in this order if he so chooses.

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Discussion
A.

Screening standard

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The Prison Litigation Reform Act directs federal courts to conduct a preliminary screening of

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any case in which a prisoner seeks redress from a governmental entity or officer or an employee of a

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governmental entity.1 In its review, the court must identify any cognizable claims and dismiss any

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claims that are frivolous or 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 that relief.2 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 a

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See 28 U.S.C. § 1915(a).

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See 28 U.S.C. § 1915A(b)(1)(2).
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person acting under color of state law.3

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Dismissal of a complaint for failure to state a claim upon which relief can be granted is

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

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under § 1915 when reviewing the adequacy of a complaint. Pro se pleadings are liberally construed.4

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

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amend the complaint with directions for 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.5

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B.

Screening Woods’s amended complaint

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Woods sues a handful of Las Vegas Metropolitan Police Department (“Metro”) officers for

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events that allegedly took place while he was a pretrial detainee at the Clark County Detention

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Center (“CCDC”):6 Sgt. Leavitt, officers Parascando, Jimerson, M. Hogan, and Lt. LaPore.7 He

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asserts one count and seeks monetary damages.8
Woods alleges that he has been retaliated against and sexually abused by Metro officers.9

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The bulk of his allegations refer to several attached grievances.10 For example, he alleges: “Exhibit

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(2) confirms abusive acts of Sgt. Leavitt, officer D. Jones, officer M. Hogan, and officer J.

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Neville.”11 Though Woods’s complaint contains some factual allegations of sexual abuse, he

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repeatedly refers to exhibits throughout his complaint to make additional allegations. I decline to

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See West v. Atkins, 487 U.S. 42, 48 (1988).

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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

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ECF No. 2 at 1. Metro operates the CCDC.

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Id. at 2–3

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Id. at 4, 9

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Id. at 3.

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Id. at 4.

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Id.
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piecemeal Woods’s allegations in the attached exhibits and his complaint together, so I deny his

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amended complaint without prejudice and with leave to amend with detailed instructions for curing

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its deficiencies.

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Woods is cautioned that, upon amendment, he must include all of his allegations in the body

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of his complaint. I will not refer to exhibits to find them. I also note that some of Woods’s

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allegations are vague and conclusory. For example, he alleges that “officer D. Jones, officer M.

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Hogan, and officer J. Neville aid[ed] and abet[ted] Sgt. Levitt to carry out torture, gross acts of

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sexual assault, and deprivation of life, liberty, and happiness.”12 But Woods does not allege any facts

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to support these allegations—i.e., what they actually did. Such vague and conclusory allegations do

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not state a claim for relief.13 Woods must keep this standard in mind if he chooses to file an

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amended complaint.

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Additionally, though Woods titles his sole claim “sexual assault,” he also alleges that

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defendants retaliated against him and engaged in due-process violations,14 and he invokes the

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protections of the Eighth, First, Fifth, and Fourteenth Amendments.15 If he chooses to file a second-

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amended complaint, Woods must clarify which claims he is bringing and separately make factual

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allegations to support each claim. Woods’s claims appear to be based on the First, Fourth, and

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Fourteenth Amendments, and Woods should keep the following standards in mind if he chooses to

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file an amended complaint.

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1.

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

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First Amendment retaliation claim

litigation in the courts.16 To state a viable First Amendment retaliation claim in the prison context, a

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Id. at 4.

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See Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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ECF No. 2 at 4.

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Id.

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Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004).

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

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(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate

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correctional goal.”17

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2.

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Woods appears to allege that the strip searches at the CCDC are unnecessarily intrusive and

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are not done for the purpose of discovering contraband but instead for the enjoyment of the officers.

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Strip searches in general do not violate the Fourth Amendment rights of prisoners.18 But strip

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searches that are “excessive, vindictive, harassing, or unrelated to any legitimate penological

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Sexual assault, abuse, harassment, and torture allegations

interest” may violate a prisoner’s Fourth Amendment rights.19

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Woods’s conclusory “torture” allegations and any allegations of sexual abuse outside of a

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strip search likely arise under the Fourteenth Amendment’s due-process clause.20 To prevail on an

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excessive-force claim, a “pretrial detainee must show only that the force purposefully or knowingly

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used against him was objectively unreasonable,” which turns on the ‘facts and circumstances of each

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particular case.”21 When evaluating the reasonableness of force used on a pretrial detainee, courts

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generally consider:

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the relationship between the need for the use of force and the amount
of force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by the

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Id. at 567–68.

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See Michenfelder v. Sumner, 860 F.2d 328, 332–33 (9th Cir. 1988).

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Id. at 332.

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Any excessive-force claim brought by Woods technically arises under the Fourteenth
Amendment’s due-process clause rather than the under the Eighth Amendment’s cruel-and-unusual
punishment clause because he is a pretrial detainee. Kingsley v. Hendrickson, 135 S.Ct. 2466
(2015).
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Kingsley, 135 S.Ct. at 2473 (internal citation omitted).
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officer; and whether the plaintiff was actively resisting.22

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3.

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A prisoner is entitled to procedural due-process protections only when a prison disciplinary

Fourteenth amendment due-process claim

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action “implicates a protected liberty interest in some ‘unexpected matter’ or imposes an ‘atypical

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and significant hardship on the inmate in relation to the ordinary incidents of prison life.’”23 Courts

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look to three guideposts to determine whether a prison hardship is atypical and significant: (1)

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whether the challenged condition “mirror[s] those conditions imposed upon inmates in

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administrative segregation and protective custody;” (2) the duration of the condition, and the degree

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of restraint imposed; and (3) whether the state’s action will invariably affect the duration of the

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prisoner’s sentence.24

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When a protected liberty interest exists and a prisoner faces disciplinary charges, prison

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officials must provide the prisoner with (1) a written statement at least 24 hours before the

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disciplinary hearing that includes the charges, a description of the evidence against the prisoner, and

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an explanation for the disciplinary action taken; (2) an opportunity to present documentary evidence

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and call witnesses, unless calling witnesses would interfere with institutional security; and (3) legal

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assistance where the charges are complex or the inmate is illiterate.25

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C.

Leave to amend

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If Woods chooses to file a second-amended complaint, he is advised that an amended

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complaint supersedes his first-amended complaint and, thus, the second-amended complaint must be

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complete in itself.26 Woods’s second-amended complaint must therefore contain all claims,

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Id. (internal citation omitted).

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Serrano v. Francis, 345 F.3d. 1071, 1078 (9th Cir. 2003).

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Sandin v. Conner, 515 U.S. 472, 486–87 (1995).

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See Wolff v. McDonnell, 418 U.S. 539, 563–70 (1974).

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See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989)
(holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended
pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir.
2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such
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defendants, and factual allegations that he wishes to pursue in this lawsuit, and he must file it on this

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court’s approved prisoner civil-rights form and it must be entitled “Second Amended Complaint.”

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Woods must follow the directions on the form complaint and “[s]tate the facts clearly, in [his] own

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words, and without citing legal authority or argument . . . describe exactly what each specific

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defendant (by name) did to violate [his] rights.” If Woods wishes to file a second-amended

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complaint curing the deficiencies outlined in this order, he must do so by November 6, 2016. If

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Woods does not file an amended complaint by this deadline, this case will be closed without

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further notice.

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Conclusion

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Accordingly, IT IS HEREBY ORDERED that Woods’s application to proceed in forma

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pauperis [ECF No. 1] is GRANTED. Woods may maintain this action to conclusion without

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prepayment of fees or costs, but he will need to make payments toward the $350 filing fee until it is

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paid in full when he has the funds available, and he remains responsible for the full fee regardless of

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whether this case is dismissed. This order does not extend to the issuance of subpoenas at

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government expense.

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IT IS FURTHER ORDERED that, under 28 U.S.C. § 1915(b)(2), the Clark County Detention

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Center must pay to the Clerk of the United States District Court, District of Nevada, 20% of the

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preceding month’s deposits to the account of Edwards Woods, #1361888 (in months that the

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account exceeds $10.00) until the full $350.00 filing fee has been paid for this action. If Woods is

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transferred to the Nevada Department of Corrections, the CCDC Accounting Supervisor is directed

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to send a copy of this order to the attention of the Chief of Inmate Services for the Nevada

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Department of Corrections, P.O. Box 7011, Carson City, NV 89702, indicating the amount that

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Woods has paid toward the filing fee, so that funds may continue to be deducted from Woods’s

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account. The Clerk is directed to SEND a copy of this order to the CCDC Accounting Supervisor,

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330 S. Casino Center Blvd., Las Vegas, NV 89101.

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IT IS FURTHER ORDERED that the amended complaint [ECF No. 2] is DISMISSED in its

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claims in a subsequent amended complaint to preserve them for appeal).
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entirety without prejudice and with leave to amend.
IT IS FURTHER ORDERED that the Clerk of the Court is directed to SEND Woods the

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approved form for filing a § 1983 complaint, instructions for the same, and a copy of his first-

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amended complaint [ECF No. 2]. If Woods chooses to file a second-amended complaint, he must

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use the approved form and write the words “Second Amended” above the words “Civil Rights

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Complaint” in the caption. If Woods chooses to file a second-amended complaint curing the

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deficiencies I have outlined in this order, he must do so by November 6, 2016. If Woods does not

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file an amended complaint by this deadline, this case will be closed without further notice.

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Dated this 6th day of October, 2016
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Jennifer A. Dorsey
ennifer A
ni
ni
y
United States District Judge
d States District Judg
ri
rict

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