Moreno v. Peace Officers et al

Filing 8

ORDER Decision on IFP Application 7 is deferred. Clerk shall file complaint 1 -1. Complaint dismissed in its entirety with leave to amend. Amended complaint due within 30 days. Clerk shall send approved complaint form with instructions, and copy of original complaint (mailed 2/19/15). Signed by Judge Robert C. Jones on 2/19/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LORENZO MORENO,

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Plaintiff,
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v.
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PEACE OFFICERS et al.,
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Defendants.
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___________________________________ )

3:14-cv-533-RCJ-VPC
ORDER

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Plaintiff, who is a prisoner in the custody of Lake’s Crossing Center1, has submitted a

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civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in

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forma pauperis. (ECF No. 1-1, 7). The matter of the filing fee shall be temporarily deferred.

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

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I.

SCREENING STANDARD

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

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

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

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

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or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

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§ 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Balistreri v.

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

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

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

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Lake’s Crossing Center is a state-run mental health facility under the administration
of the Nevada Department of Health and Human Services Division of Public and Behavioral
Health. See Organizational Chart at http://health.nv.gov/PDFs/Organization%20Charts/
2014/DPBHOverviewAdministration.pdf.

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a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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In addition to the screening requirements under § 1915A, pursuant to the Prison

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

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

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

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

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

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

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

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

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

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

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

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

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claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the

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

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1999). In making this determination, the court takes as true all allegations of material fact

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

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

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

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

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

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

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

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

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because they are no more than mere conclusions, are not entitled to the assumption of truth.”

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the

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framework of a complaint, they must be supported with factual allegations.” Id. “When there
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are well-pleaded factual allegations, a court should assume their veracity and then determine

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whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a

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

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reviewing court to draw on its judicial experience and common sense.” Id.

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

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

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

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

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

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

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795, 798 (9th Cir. 1991).

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II.

SCREENING OF COMPLAINT

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

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Plaintiff was incarcerated at Lake’s Crossing Center. (ECF No. 1-1 at 1). Plaintiff sues

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Defendants Christopher Welsh, Peace Officers, Officials, Nurses, and Correctional Officer

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Technology. (Id. at 2-3). Plaintiff alleges two counts and seeks monetary damages. (Id. at

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5).

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The complaint alleges the following: Plaintiff’s constitutional rights have been violated

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and continue to be violated by peace officers, nurses, and Technology. (Id. at 3). Plaintiff has

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been and is “suffering [from] serious physical injuries.” (Id.). Plaintiff is “messed up” in the

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head and cannot read, write, or spell. (Id.). Plaintiff is not the same and “Tom” is lying and

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making false information in the paper work. (Id.). Peace officers have been violating Plaintiff’s

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constitutional rights for seven months. (Id. at 4). Plaintiff was physically assaulted one time

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by peace officers and now Plaintiff is suffering from serious physical injuries. (Id.). Plaintiff

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cannot take such pain to his head and body. (Id. at 5). Plaintiff cannot concentrate because

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of Technology. (Id.).

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The Court finds that Plaintiff may be attempting to allege an Eighth Amendment

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excessive force claim based on a possible assault by Technology. However, the Court finds
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that Plaintiff fails to state a claim at this time because the complaint is unclear as to who

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assaulted Plaintiff, how Plaintiff was assaulted, and what injuries Plaintiff suffered as a result

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of the assault. The Court grants Plaintiff leave to amend this claim.

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Upon amendment, Plaintiff should take note of the following law: When a prison official

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stands accused of using excessive physical force in violation of the cruel and unusual

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punishment clause of the Eighth Amendment, the question turns on whether force was applied

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in a good-faith effort to maintain or restore discipline, or maliciously and sadistically for the

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purpose of causing harm. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (citing Whitley v.

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Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force was wanton

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and unnecessary, it may also be proper to consider factors such as the need for application

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of force, the relationship between that need and the amount of force used, the threat

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reasonably perceived by the responsible officials, and any efforts made to temper the severity

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of a forceful response. Hudson, 503 U.S. at 7. Although an inmate need not have suffered

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serious injury to bring an excessive force claim against a prison official, the Eighth

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Amendment’s prohibition on cruel and unusual punishments necessarily excludes from

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constitutional recognition de minimis uses of physical force. Id. at 9-10.

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Plaintiff is granted leave to file an amended complaint to cure the deficiencies of the

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complaint. If Plaintiff chooses to file an amended complaint he is advised that an amended

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complaint supersedes the original complaint and, thus, the amended complaint must be

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complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint

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is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa

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Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a

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plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve

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them for appeal). Plaintiff’s amended complaint must contain all claims, defendants, and

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factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file

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the amended complaint on this Court’s approved prisoner civil rights form and it must be

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entitled “First Amended Complaint.” Upon amendment, the Court directs Plaintiff to follow the
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directions in the form complaint and “[s]tate the facts clearly, in your own words, and without

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citing legal authority or argument . . . describe exactly what each specific defendant (by name)

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did to violate your rights.”

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The Court notes that if Plaintiff chooses to file an amended complaint curing the

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deficiencies outlined in this order, Plaintiff shall file the amended complaint within 30 days from

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the date of entry of this order. If Plaintiff chooses not to file an amended complaint, the Court

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will dismiss this action without prejudice.

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III.

For the foregoing reasons, IT IS ORDERED that a decision on the application to

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proceed in forma pauperis (ECF No. 7) is deferred.
IT IS FURTHER ORDERED that the Clerk of the Court shall file the complaint (ECF No.

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1-1).
IT IS FURTHER ORDERED that the complaint is dismissed in its entirety, without

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CONCLUSION

prejudice, with leave to amend for failure to state a claim.

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IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint curing

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the deficiencies of his complaint, as outlined in this order, Plaintiff shall file the amended

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complaint within 30 days from the date of entry of this order.

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IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the

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

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original complaint (ECF No. 1-1). If Plaintiff chooses to file an amended complaint, he must

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use the approved form and he shall write the words “First Amended” above the words “Civil

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Rights Complaint” in the caption.

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IT IS FURTHER ORDERED that if Plaintiff fails to file an amended complaint curing the
deficiencies outlined in this order, this action will be dismissed without prejudice.
Dated: This 19th day of February, 2015.
DATED: This _____ day of February, 2015.

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_________________________________
United States District Judge

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