McNair v. Walsh et al

Filing 18

ORDER dismissing 9 Amended Complaint, with leave to amend within 28 days. Signed by Judge Robert C. Jones on 1/25/2016. (Copies have been distributed pursuant to the NEF - KR) Modified on 1/26/2016 to correct filed date (KR).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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CLARENCE MCNAIR,
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Plaintiff,
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vs.
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LISA WALSH et al.,
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Defendants.
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3:15-cv-00017-RCJ-WGC
ORDER

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This is a prisoner civil rights complaint under 42 U.S.C. § 1983. The Court now screens

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the Amended Complaint (“AC”) under 28 U.S.C. § 1915A.

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I.

FACTS AND PROCEDURAL HISTORY

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Plaintiff Clarence McNair is a prisoner in the custody of the Nevada Department of

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Corrections (“NDOC”) at Northern Nevada Correctional Center (“NNCC”). Plaintiff first

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alleges deliberate indifference in violation of the Eighth Amendment, violation of the Americans

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with Disabilities Act (“ADA”), and violations of the Prison Rape Elimination Act (“PREA”)

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based on a July 28, 2014 incident. Plaintiff alleges two Defendant corrections officers ordered

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him to come with them because he was being moved to a different unit. He protested because he

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based on his arthritis, and they called him names and forcibly took him to the new unit. He

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alleges his housing in the new unit is “counterproductive to my therapeutic treatments and needs

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distance wise.” Second and third (the two claims are essentially redundant), Plaintiff alleges that

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his Eighth Amendment and ADA rights were violated on September 29, 2014 when prison

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officials refused to remove him from administrative segregation (where he had been placed for

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having refused the previous move) and put him back into his original unit despite knowing of his

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arthritis. He alleges that while in segregation he was not allowed to participate in a wheelchair

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exercise program he had previously participated in.

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II.

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LEGAL STANDARDS
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 28

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

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

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seek monetary relief from a defendant who is immune from such relief. See id. § 1915A(b)(1)–

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(2). 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 12(b)(6), and the court applies the same standard under § 1915A.

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Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). When a court dismisses a complaint

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upon screening, the plaintiff should be given leave to amend the complaint with directions as to

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curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could

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not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

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Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action

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that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule

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12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578,

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581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to

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state a claim, dismissal is appropriate only when the complaint does not give the defendant fair

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notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a

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claim, the court will take all material allegations as true and construe them in the light most

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favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). The

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court, however, is not required to accept as true allegations that are merely conclusory,

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unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with

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conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is

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plausible, not just possible. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citations omitted).
“Generally, a district court may not consider any material beyond the pleadings in ruling

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on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

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complaint may be considered.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542,

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1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents whose contents are alleged

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in a complaint and whose authenticity no party questions, but which are not physically attached

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to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without

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converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14

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F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule of Evidence 201, a court may take

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judicial notice of “matters of public record.” Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279,

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1282 (9th Cir. 1986).
Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the

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prisoner’s claims lack an arguable basis in law or in fact. This includes claims based on legal

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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

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

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III.

ANALYSIS
The Eighth Amendment prohibits the imposition of cruel and unusual punishment and

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“embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and

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decency.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A prison official violates the Eighth

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Amendment when he acts with “deliberate indifference” to the serious medical needs of an

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inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To establish an Eighth Amendment

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violation, a plaintiff must satisfy both an objective standard—that the deprivation was serious

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enough to constitute cruel and unusual punishment—and a subjective standard—deliberate

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indifference.” Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012). To establish the first prong,

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“the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner’s

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condition could result in further significant injury or the unnecessary and wanton infliction of

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pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted). To

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satisfy the deliberate indifference prong, a plaintiff must show “(a) a purposeful act or failure to

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respond to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.”

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Id. Simple negligence will not support an Eighth Amendment claim. Estelle, 429 U.S. at 106

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(“Medical malpractice does not become a constitutional violation merely because the victim is a

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prisoner.”).

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Plaintiff has not made out a claim of cruel and unusual punishment. He has not alleged

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facts indicating that his transfer to the new unit, or even his housing in administrative

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segregation, has resulted in a deliberate failure to treat a serious medical condition. He has

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alleged only that he is unable to participate in a certain wheelchair exercise program while in

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segregation and that while in segregation he is not “mobile” throughout NNCC for self-

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rehabilitation. But Plaintiff brought that upon himself by refusing the unit transfer. Plaintiff’s

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medical condition does not immunize him from appropriate discipline for disobedience to prison

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officials and guards. Plaintiff does not allege that he receives no treatment at all for his arthritis

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appropriate to his segregated quarters. Presumably, he receives appropriate medication and other

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treatment. Plaintiff’s special needs may give him a liberty interest against being housed in

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segregation that a non-disabled prisoner would not have. See Serrano v. Francis, 345 F.3d 1071,

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1078–79 (9th Cir. 2003) (Aldisert, J.). But that only means that certain due process protections

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may have been required at the disciplinary hearing, and Plaintiff has not attacked the fairness of

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his disciplinary hearing. Nor has Plaintiff alleged any disability-based discrimination under the

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ADA. He has not alleged that he has been refused access to any place or program that he would

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have access to if he were not disabled. If Plaintiff were not disabled and had refused the cell

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transfer, he would presumably be just as restricted in his movement and program participation as

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a result of his discipline.
CONCLUSION

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IT IS HEREBY ORDERED that the Amended Complaint is DISMISSED, with leave to

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amend to correct the deficiencies noted above. Any amendment is due within 28 days of the

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entry of this Order into the electronic docket.

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IT IS SO ORDERED.
Dated this 9th25th dayDecember, 2015.
DATED this day of of January, 2016.

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_____________________________________
ROBERT C. JONES
United States District Judge

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