Howard v. Cox et al

Filing 46

ORDER granting in part and denying in part 26 Motion to Dismiss; ORDER denying 35 Motion; Howard's official-capacity, monetary-damages claims are dismissed; the motion is denied in all other respects. Signed by Judge Jennifer A. Dorsey on 7/2/2020. (Copies have been distributed pursuant to the NEF - JM)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 Reginald C. Howard,
4

Case No.: 2:17-cv-01002-JAD-BNW

Plaintiff

5 v.
6 Greg Cox, et al.,
7

Defendants

Order Granting in Part and Denying in
Part Defendants’ Motion for Partial
Dismissal and Denying Plaintiff’s Motion
for Injunctive Relief
[ECF Nos. 26, 35]

8
9

Nevada prisoner Reginald C. Howard brings this pro se civil-rights lawsuit, alleging that

10 various administrators and staff at the Nevada Department of Corrections (NDOC) and its High
11 Desert State Prison (HDSP) and Southern Desert Correctional Center (SDCC) facilities violated
12 his First, Eighth, and Fourteenth Amendment rights. 1 Howard brings both individual- and
13 official-capacity claims, and he seeks to enjoin the defendants from harassing and retaliating
14 against him for filing this complaint, along with monetary damages and declaratory relief. 2 He
15 also moves for injunctive relief against nonparties for injuries that he sustained at a different
16 facility. 3
17

Defendants now move to dismiss portions of Howard’s action and oppose his motion for

18 injunctive relief. They argue that his claim for money damages against the defendants in their
19 official-capacity is not permissible; that his prayer for injunctive relief is too vague and that his
20 motion for injunctive relief lacks the required connection to the allegations in his complaint; and
21
22

1

ECF No. 5 (amended complaint).

23

2

Id. at 22.

3

ECF No. 35 (motion for injunctive relief).

1 that the doctrine of qualified immunity shields Defendants Dzurenda, Gentry, Adams, and
2 Tristan from Howard’s free-exercise claim. 4 Because this court cannot grant injunctive relief
3 against nonparties for unrelated claims, I deny Howard’s motion for injunctive relief. Because
4 Howard can’t obtain damages from the defendants in their official capacities, I grant the
5 defendants’ motion to dismiss his request for monetary damages. But I deny their request to
6 dismiss his free-exercise claim without prejudice because the defendants’ thin analysis fails to
7 demonstrate that this claim is barred by qualified immunity.
Background 5

8
9

After two screening orders and an opportunity to amend with instructions, Howard was

10 left with the following claims, all of which are brought against the defendants in their individual
11 and official capacities:
•

12

Count 1: An Eighth Amendment deliberate-indifference-to-serious-medical-

13

needs claim against Defendants Porter and Sgt. Sanchez based on their alleged

14

intentional prolonging of Howard’s severe leg and back pain;
•

15

Count 2: An Eighth Amendment deliberate-indifference-to-serious-medical-

16

needs claim against Defendants Groover, Gutierrez, Drs. Sanchez and

17

Vicuna, Willett, Aranas, Clark, Piscos, Dzurenda, Gentry, and Adams based

18

on their alleged refusal to provide him with in-cell, delivered meals when he

19

couldn’t walk to culinary due to physical and medical limitations; and a First

20

Amendment retaliation claim against Willett and Groover based on the

21
22
4

23

ECF No. 26 (motion to dismiss).

5

This is a summary of the facts Howard alleged in his complaint and should not be construed as
findings of fact.
2

1

allegation that they denied him meals because of his grievances and litigation

2

against them;
•

3

Count 3: A First Amendment free-exercise-of-religion claim against

4

Defendants Cox, Dzurenda, Gentry, Adams, and Tristan based on their

5

alleged adoption and implementation of a policy at the SDCC to close the chapel

6

if the resident chaplain is not on site and if there is not an outside volunteer

7

available to conduct services, which Howard claims burdens his exercise of the

8

Islamic faith;
•

9

Count 4: An Eighth Amendment deliberate-indifference-to-serious-medical-

10

needs claim against Defendants Mesa, Groover, and Willett based on their

11

alleged forcing of Howard to move his property and walk distances despite

12

knowing that he had a severe back and leg injury requiring him to use crutches;

13

and an excessive-force claim against Defendant Mesa for unnecessarily

14

handcuffing him after he’d fallen; and
•

15

Count 5: An Eighth Amendment deliberate-indifference-to-serious-medical-

16

needs claim and a retaliation claim against Defendant Groover based on the

17

allegations that he forced Howard to walk 150 yards to culinary, knowing that the

18

travel would be painful, in retaliation for the multiple grievances and civil lawsuit

19

that Howard had filed against Groover.

20 The defendants move to dismiss Howard’s money-damages claims against them in their official
21 capacity, his prayer for injunctive relief, and all of count 3. 6 Howard opposes the motion. 7 After
22
23

6

ECF No. 26.

7

ECF No. 27.
3

1 the briefing on the motion to dismiss was completed, Howard filed a motion for injunctive relief
2 regarding a May 31, 2020, incident unrelated to any allegations in his operative complaint. 8 I
3 address both motions in turn.
4

Discussion

5 I.

The defendants’ motion to dismiss [ECF No. 26]

6

A.

7

Federal Rule of Civil Procedure 8 requires every complaint to contain “[a] short and plain

Motion-to-dismiss standard

8 statement of the claim showing that the pleader is entitled to relief.” 9 While Rule 8 does not
9 require detailed factual allegations, the properly pled claim must contain enough facts to “state a
10 claim to relief that is plausible on its face.” 10 This “demands more than an unadorned, the11 defendant-unlawfully-harmed-me accusation”; the facts alleged must raise the claim “above the
12 speculative level.” 11 In other words, a complaint must make direct or inferential allegations
13 about “all the material elements necessary to sustain recovery under some viable legal theory.” 12
14

District courts employ a two-step approach when evaluating a complaint’s sufficiency on

15 a Rule 12(b)(6) motion to dismiss. The court must first accept as true all well-pled factual
16 allegations in the complaint, recognizing that legal conclusions are not entitled to the assumption
17 of truth. 13 Mere recitals of a claim’s elements, supported by only conclusory statements, are
18
19

8

ECF No. 35.

9

20

Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).

21

10

Twombly, 550 U.S. at 570.

11

Iqbal, 556 U.S. at 678.

22

12

Twombly, 550 U.S. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106
23 (7th Cir. 1989)) (emphasis in original).
13

Iqbal, 556 U.S. at 678–79.
4

1 insufficient. 14 The court must then consider whether the well-pled factual allegations state a
2 plausible claim for relief. 15 A claim is facially plausible when the complaint alleges facts that
3 allow the court to draw a reasonable inference that the defendant is liable for the alleged
4 misconduct. 16 A complaint that does not permit the court to infer more than the mere possibility
5 of misconduct has “alleged—but not shown—that the pleader is entitled to relief,” and it must be
6 dismissed. 17
7

B.

8

Section 1983 “is not itself a source of substantive rights, but merely provides a method

Section 1983 standard

9 for vindicating federal rights elsewhere conferred.” 18 To state a claim under § 1983, a plaintiff
10 must allege that (1) a person acting under the color of state law (2) violated a right secured to the
11 plaintiff by the Constitution or the laws of the United States. 19 “A defendant acts under color of
12 law if he ‘exercises power possessed by virtue of state law and made possible only because the
13 wrongdoer is clothed with the authority of state law.’” 20
14
15
16
17
18

21
22
23

Id.
Id. at 679.

16

Id.

17

Twombly, 550 U.S. at 570.

18

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979).

19

20

14
15

19

West v. Atkins, 487 U.S. 42, 48–49 (1988).

20

Perez-Morciglio v. Las Vegas Metro. Police Dep’t, 820 F. Supp. 2d 1100, 1106 (D. Nev. 2011)
(quoting West, 487 U.S. at 49 (alterations omitted)).
5

1
C.
2
3

Howard can’t pursue money damages from the defendants in their official
capacities.

The defendants argue that Howard’s § 1983 claims against them in their official

4 capacities fail as a matter of law because they are not “persons” for § 1983 liability purposes. 21
5 “[N]either a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” 22
6 Instead, “a suit against a state official in his or her official capacity . . . is a suit against the
7 official’s office. As such, it is no different from a suit against the State itself.” 23 And because
8 the Eleventh Amendment insulates states from suits for damages vis a vis its official actors, that
9 action must be dismissed. 24 “The rule is entirely different, however, when the suit is for
10 injunctive relief. Of course a state official in his or her official capacity, when sued for
11 injunctive relief, would be a person under § 1983 because official-capacity actions for
12 prospective relief are not treated as actions against the State.” 25
13

Howard prays for damages and prospective relief from the defendants in their individual

14 and official capacities. Each of the defendants is an employee of the Nevada Department of
15 Corrections—a state agency—so Howard’s official-capacity damages request is “no different
16
17
18
19

21

ECF No. 26 at 5.

22

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).

23

Id. (internal citations omitted).

24

Id. at 67 (“It is an ‘established principle of jurisprudence’ that the sovereign cannot be sued in
20 its own courts without its consent.”) (quoting Beers v. Arkansas, 61 U.S. 527, 529 (1858));
Repass v. Clark Cty. Det. Ctr., No. 2:13-cv-00237-APG-GWF, 2014 WL 335040, at *3 (D. Nev.
21 Jan. 29, 2014) (“Official-capacity suits filed against government officials [under § 1983] are
merely an alternative way of pleading an action against the entity of which the defendant is an
22 officer.”) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991)).
25

23

Guam Soc. of Obstetricians & Gynecologists v. Ada, 962 F.2d 1366, 1371 (9th Cir. 1992), as
amended (June 8, 1992) (quoting Will, 491 U.S. at 71 n.10) (internal quotation omitted); see also
Paeste v. Gov’t of Guam, 798 F.3d 1228, 1236 (9th Cir. 2015).
6

1 than a suit against the State itself” 26 and it is barred by the doctrine of sovereign immunity.
2 Because the defendants in their official capacities are not persons for § 1983 purposes, I must
3 dismiss Howard’s request for damages against them in that capacity. However, Howard’s
4 requests for prospective relief against the defendants in their official capacities may proceed. 27
5

D.

6

The defendants next argue that I should dismiss Howard’s request for injunctive relief

Howard’s injunctive-relief prayer is sufficiently clear.

7 because the complaint is “so vague that it ‘renders itself meaningless and unenforceable.’” 28
8 “[W]hen a defendant is unclear about the meaning of a particular allegation in the complaint, the
9 proper course of action is not to move to dismiss but to move for a more definite statement.” 29
10 Federal Rule of Civil Procedure 12(e) provides that, “[a] party may move for a more definite
11 statement of a pleading to which a responsible pleading is allowed but which is so vague or
12 ambiguous that the party cannot reasonably prepare a response.” 30
13

In my screening order, I found that Howard had stated colorable retaliation claims against

14 Lieutenant Groover, Lieutenant Willett, and Officer Mesa for denying him meals because of his
15 grievances and litigation filed against them. 31 So Howard’s request to enjoin the “defendant[s]
16
17
18

26

Will, 491 U.S. at 71.

27

Id. at 71, n.10 (“[O]fficial-capacity actions for prospective relief are not treated as actions
against the State.”) (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985), and citing Ex
20 Parte Young, 209 U.S. 123, 159–160 (1908)).
28
ECF No. 26 at 5 (quoting Stetson v. Washington Dep’t. of Corr., 2017 WL 2485198 at *6
21 (W.D. Wash. Apr. 7, 2017) (unpublished)).
19

22
23

29

Am. Nurses’ Ass’n’ v. Illinois, 783 F.2d 716, 725 (7th Cir. 1986) (citing United States v.
Employing Plasterers Ass’n, 347 U.S. 186, 189 (1954)); see Fed. R. Civ. P. (8)(a).
30

Fed. R. Civ. P. 12(e).

31

ECF No. 11 at 12–14.
7

1 from harassing and retaliating against [him]” 32 is not “so vague” that it renders his request
2 unenforceable when considered in the context of the whole complaint. To the extent that
3 Howard seeks injunctive relief from Groover, Willett, and Mesa, and should he prevail, the scope
4 of that injunction can be determined later. The defendants’ motion to dismiss Howard’s request
5 for injunctive relief is denied.
6

E.

7

Howard’s third count is a First Amendment free-exercise-of-religion claim against former

The defendants have not shown that count 3 is barred by qualified immunity.

8 NDOC Directors Greg Cox and James Dzurenda, 33 whom he alleges adopted and refused to
9 change the policy that keeps him from practicing his religion on most Fridays when a faith leader
10 is unavailable. 34 He also claims that Warden J. Gentry, Assistant Warden Adams Minor, and D.
11 Tristan are liable because they continue to enforce this discriminatory policy. 35 The defendants
12 argue that this count should be dismissed on qualified-immunity grounds because inmates don’t
13 have a constitutional right to unsupervised religious practice. 36
14

1.

15

Qualified-immunity standard

Qualified immunity protects government officials “from money damages unless a

16 plaintiff pleads facts showing that (1) the official violated a statutory or constitutional right, and
17 (2) the right was ‘clearly established’ at the time of the challenged conduct.” 37 I exercise my
18
19
20

32

ECF No. 5 at 22.

33

Dzurenda has since been replaced as the NDOC Director by Charles Daniels.

34

22

ECF No. 5 at 14–15; ECF No. 11 at 10.

35

ECF No. 5 at 15.

23

36

ECF No. 26 at 7–8; ECF No. 29 at 3.

37

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

21

8

1 discretion to tackle the “clearly established” prong of the qualified immunity test first. 38 “A
2 court determining whether a right was clearly established looks to the [United States] Supreme
3 Court and Ninth Circuit law existing at the time of the alleged act.” 39 “A right is clearly
4 established only if its contours are sufficiently clear that a reasonable official would understand
5 that what he is doing violates that right.” 40 “[E]xisting precedent must have placed the statutory
6 or constitutional question beyond debate.” 41 This means that courts must not “define clearly
7 established law at a high level of generality.” 42 “The dispositive question is whether the
8 violative nature of particular conduct is clearly established.” 43 “This inquiry must be undertaken
9 in light of the specific context of the case, not as a broad general proposition.” 44
10

2.

The defendants overstate the holding in Anderson v. Angelone.

The defendants rely on the Ninth Circuit’s case in Anderson v. Angelone 45 for their

11

12 argument that Howard’s right to unsupervised religious practice is not clearly established. 46 But
13 Anderson is not as broad as the defendants propose. Anderson merely holds that Nevada’s
14
15
16

38

Id. (“We recently reaffirmed that lower courts have discretion to decide which of the two
prongs of qualified-immunity analysis to tackle first.”) (citing Pearson v. Callahan, 555 U.S.
17 223, 236 (2009)).
39

18

Quiroz v. Short, 85 F. Supp. 3d 1092, 1107 (N.D. Cal. 2015) (quoting Community House, Inc.
v. Bieter, 623 F.3d 945, 967 (9th Cir. 2010)).

20

40

Carroll v. Carman, 574 U.S. 13, 16 (2014) (internal quotation marks omitted).

41

19

Id. (internal quotation marks omitted).

42

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (alteration in the original) (quoting Ashcroft, 563
21 U.S. at 742).
43
Id. (internal quotation marks omitted) (emphasis in original).
22 44
Id.
23

45

Anderson v. Angelone, 123 F.3d 1197, 1198–99 (9th Cir. 1997).

46

ECF No. 26 at 11.
9

1 prohibition on inmate-led religious services does not violate the First Amendment. 47 But
2 Howard is neither requesting to lead his own Friday service nor challenging the jail’s policy of
3 using resident chaplains or volunteer leaders, so Anderson is not dispositive. In considering
4 whether such a challenged policy is reasonable, courts consider whether it is reasonably related
5 to legitimate penological interests, rehabilitative concerns, the availability of alternative
6 accommodations, and any adverse effects on the prison institution.48 But the defendants have
7 not discussed any of these factors. 49 So I deny the motion to dismiss this claim without prejudice
8 to defendants’ ability to raise the qualified-immunity argument in a future, appropriate motion
9 with a more robust treatment of this issue.
10 II.

Howard’s motion for injunctive relief [ECF No. 35]

11

Howard asks for injunctive relief from this court or the Attorney General’s Office to help

12 him with respect to a May 31, 2020, assault by an unidentified inmate whom he was housed with
13 in the mental-health unit. 50 A preliminary injunction is only appropriate when it grants relief of
14 the same nature as that to be finally granted, 51 so the Ninth Circuit requires “a relationship
15 between the injury claimed in the motion for injunctive relief and the conduct asserted in the
16 underlying complaint.” 52 Absent that nexus, “[a] district court lacks authority to grant the relief
17 requested.” 53
18
19

47

Anderson, 123 F.3d at 1198–99.

48
See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348–353 (1987) (discussing the relevant
20 factors in considering whether a potential method of accommodation is reasonable).
49

Id.

50

22

ECF No. 35 at 1.

51

De Beers Consol. Mines v. United States, 325 U.S. 212, 220 (1945).

23

52

Id.

53

Id.

21

10

1

In addition to being extremely vague about what injunctive relief he desires, Howard’s

2 request lacks the required nexus to his complaint. Howard’s complaint alleges multiple claims
3 against various staff at the HDSP, SDCC, and NDOC. 54 However, his motion for injunctive
4 relief concerns an unidentified inmate at Ely State Prison. 55 Because Howard has not shown that
5 a relationship exists between his alleged injury at Ely State Prison and his claims in the
6 underlying complaint, his motion must be denied.
7

Conclusion

8

Accordingly, IT IS HEREBY ORDERED that defendant’s motion to dismiss

9 [ECF No. 26] is GRANTED in part and DENIED in part. Howard’s official-capacity,
10 monetary-damages claims are dismissed; the motion is denied in all other respects.
11

IT IS FURTHER ORDERED that plaintiff’s motion for injunctive relief [ECF No. 35] is

12 DENIED.
13

Dated: July 2, 2020

14

___________________________________
U.S. District Judge Jennifer A. Dorsey

15
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18
19
20
21
22
23

54

ECF No. 5.

55

Id.
11