Burgess v. Spell et al

Filing 7

COPY OF ORDER Filed in Case 3:12-cv-00085-LRH-WGC. Signed by Judge Larry R. Hicks on 3/1/2012.

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARSHALL BURGESS,

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Plaintiff,

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vs.

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BRIAN E. SANDOVAL, et al.,

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Defendants.

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3:12-cv-0085-LRH-WGC
SCREENING ORDER

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Marshall Burgess, a prisoner at the Douglas County Jail, submitted a pro se Civil Rights

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Complaint (received February 10, 2012) (ECF No. 1-1 through 1-6) along with various motions. It

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also appears that another action was commenced in this court which included an application to

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proceed in forma pauperis and a motion for cell searches which was dismissed outright. See Burgess

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v. Spell, 3:12-cv-0087-ECR-WGC. It appears that the in forma pauperis application and motion

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were mistakenly separated from the instant complaint and that the documents were intended to be

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included in the instant action. Therefore, the Clerk will be directed to transfer the documents from

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that case into this case and the in forma pauperis application and filing fee assessed therein shall be

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credited toward this action.

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Petitioner has also submitted voluminous exhibits including copies of grievances and brass

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slips, a motion for temporary restraining order and preliminary injunction, as well as a motion to

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dispense with security, a motion for enlargement of prison copy work and a motion for enlargement

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of legal supplies. The complaint shall be screened as discussed below. Based upon the contents of

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the complaint, the Court concludes that the motion for temporary restraining order or preliminary

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injunction and the motions for supplies shall be denied at this time.

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I.

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Screening Pursuant to 28 U.S.C. § 1915A
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 that

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

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relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se

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pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d. 696,

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699 (9th Cir. 1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

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elements: (1) that a right secured by the Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting under color of state law. See West v.

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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 claim

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that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In

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making this determination, the court takes as true all allegations of material fact stated in the
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complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v.

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

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stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9

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(1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). While the standard under Rule

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12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels

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and 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., see Papasan v. Allain, 478 U.S. 265, 286

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(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, 129 S.Ct. 1937, 1950 (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.
Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if

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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 U.S.

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

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II.

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Screening of the Complaint
Plaintiff’s complaint runs in excess of three hundred pages, including the exhibits, naming

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134 defendants such as the Governor, numerous prison officials and correctional officers, and private

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individuals. Many are named for “engaging in unlawful gang activity & spreding [sic] gang violents

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[sic] and not reporting staff misconduct.” Others are identified as having interfered with his mail.

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Plaintiff’s allegations, such as can be deciphered because of the repetitive stream of consciousness
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presentation, are that some fifteen years ago he was drugged with Visine eye drops- which knocked

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him unconscious, was then raped, with photographs of the rape recently surfacing and being passed

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around the prison. He further alleges that he has been afflicted by rumors that he is a homosexual or

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a baby raper; that his cell has been bugged by prison staff with direct connections to gangs and gang

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members, both inside and outside the prison system, with the recordings being used to label him a

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snitch inside prison; that he has been repeatedly attacked at the behest of and with the cooperation of

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prison caseworkers; and that certain defendants (or plaintiff) wrote a book full of libelous (or

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fictional) stories about plaintiff (or about people plaintiff knows) which was then used to indict and

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imprison numerous criminals and gang members, putting plaintiff’s life in danger. He alleges that

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prison and law library staff have stolen documents from plaintiff’s prison file, copies of his legal

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mail and photos from his mail which have been circulated around the prison or posted on the internet

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and used on the cover of the previously mentioned book. The allegations reach back to 1997 through

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early 2010.1 Plaintiff appears to claim that he only became aware of the alleged drugging and rape in

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March of 2010, because of the photos, which, it appears, he has not actually seen, and that his

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attempts to have the events confirmed and the attacks terminated have resulted in an escalation of the

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threats and harm. The plaintiff’s claims are quite fantastical and while, if believed, raise some

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concern for plaintiff’s safety in 1997 and 2010, are so broad reaching and the alleged acts so

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nefarious on the part of staff as to stretch the imagination. Moreover, the exhibits plaintiff attaches

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to support his claims are all grievances or medical care requests written by him. Thus, they do not

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provide independent support for his claims. Moreover, most of the grievances were rejected as

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unsupported after investigation, duplicative, or false.

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Apart from the fantastical claims presented, plaintiff’s complaint is not viable as to most, if

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not all of his claims, because the events occurred more than two years ago, after the expiration of the

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statute of limitations imposed for claims under 28 U.S.C. § 1983. See NRS 11.190(4)(e); Perez v.

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Seevers, 869 F.2d 425, 426 (9th Cir.), cert. denied, 493 U.S. 860 (1989).

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Plaintiff’s allegations, which include twenty five claims and runs approximately 400 pages,
including exhibits, are internally inconsistent and evidence a high level of paranoia or narcissistic
thought on the part of plaintiff. His claims are repeated many times and many are based on “information
and belief”.
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The complaint will be dismissed without prejudice. Plaintiff will be permitted to amend his

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complaint to include only those allegations or claims arising within two years of the date that he

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opened this action. Any claims arising before that time will be dismissed with prejudice. Using the

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approved form, plaintiff should state his claims in a concise and clear manner without repetition or

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reliance on information and belief – to the extent that it is possible to do so. He should present

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similar claims together, rather than offering the court a mixed bag of claims. For example, if he

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alleges that certain defendants violated his First Amendment rights by interfering with his legal mail,

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he should present a separate claim which clearly identifies the individuals involved, the dates the

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events occurred and the facts supporting the claim. A diary of daily occurrences, such as is provided

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in the instant complaint, is not appropriate. A concise summary of events is sufficient. Fantastical

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claims or broad generalizations will not be allowed to proceed. Repeating the same allegations over

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and over is unacceptable.

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Only if plaintiff states a colorable claim of a civil rights violation will the Court exercise its

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supplemental jurisdiction to entertain any state law claims such as allegations of libel or slander.

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Citation to state laws or statutes are unnecessary and should not be included in the amended

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complaint. Additionally, plaintiff is advised that individual citizens who are not employed by the

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government or contracted directly with the government to provide services at the prisons, may not be

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included as defendants on claims of civil rights violations. Only those persons “acting under color of

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law” are liable under 28 U.S.C. § 1983. Finally, plaintiff’s “exhibits” will be returned to him and

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none should be attached to the amended complaint. Rather, they should be retained for use in

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proving the allegations either in a motion for summary judgment or at trial, as may be appropriate.

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See Fed. R. Civ. P. 56.

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III.

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Motions for Temporary Restraining Order and Preliminary Injunction
A preliminary injunction is an extraordinary remedy, and the right to relief must be both

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clear and unequivocal before a court will grant an injunction. See Schrier v. University of CO, 427

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F.3d 1253, 1258 (10th Cir. 2005). A request for injunctive relief that goes beyond simply

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maintaining the status quo, “is particularly disfavored, and should not be issued unless the facts and

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law clearly favor the moving party.” Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.
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1979), See Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319-20 (9th Cir. 1994). A preliminary

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injunction will only be granted if the requesting party demonstrates either: 1) a combination of

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probable success on the merits and the possibility of irreparable harm; or 2) the existence of serious

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questions going to the merits and the balance of hardships tips sharply in favor of the requesting

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party. LGS Architects, Inc. v. Concordia Homes of Nevada, 434 F.3d 1150, 1155 (9th Cir. 2006);

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Sony Computer Entertainment Am., Inc. v. Bleem, LLC, 214 F.3d 1022, 1025 (9th Cir. 2000). The

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two formulations represent a sliding scale where the degree of irreparable harm required increases as

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the probability of success decreases. Id.

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Furthermore, the Prisoner Litigation Reform Act of 1995 (PLRA) also limits the court’s

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power to grant preliminary injunctions in actions involving prison conditions. See 18 U.S.C. § 3626;

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Oluwa v. Gomez, 133 F.3d 1237, 1239 (9th Cir. 1998). Under the requirements of the PLRA, a court

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may grant a preliminary injunction, but the order must be narrowly drawn, extend no further than

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necessary to correct the harm, and be the least intrusive means necessary to correct the harm. 18

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U.S.C. § 3626(a). In addition, the court must give substantial weight to any adverse impact on

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public safety or the operation of a criminal justice system that would be caused by the injunction. Id.

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In light of the Court’s determination that the complaint must be dismissed without prejudice

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and considering the lack of specificity as to what happened when and why or where, the Court finds

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that plaintiff has not made a showing of a likelihood of success on the merits of his claims or

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imminent and irreparable harm. No response will be required from defendants and the motion for

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preliminary injunction shall be denied.

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The remaining motions shall also be denied. Once an amended complaint is submitted and
survives screening, plaintiff may renew the motions if necessary.

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IT IS THEREFORE ORDERED that the Clerk shall transfer the application to proceed in

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forma pauperis from case number 3:12-cv-0087-ECR-WGC and file it herein, which application

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shall be granted. The order directing the payment of fees in that case shall be made applicable to

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this case and no additional fee will be required of plaintiff. A copy of this Order shall be filed in that

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case.

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IT IS FURTHER ORDERED that the Clerk shall detach and file the motions and the
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complaint found at ECF No. 1.
IT IS FURTHER ORDERED that the complaint is DISMISSED WITHOUT

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PREJUDICE. Plaintiff shall have thirty days to file an amended complaint on the proper form with

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attention to the directives contained in the body of this Order. The Clerk shall send to plaintiff a

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form and instructions for filing a civil rights complaint. The Clerk shall also return the original

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exhibits attached to his complaint herein.

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IT IS FURTHER ORDERED that all other pending motions are DENIED WITHOUT
PREJUDICE.

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Dated this 1st day of March, 2012.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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