Reberger v. Byrne et al

Filing 3

ORDER - # 1 IFP Application is denied; The # 1 -1 Motion for TRO is denied; Complaint due by 3/5/2015; Clerk shall send P 1983 form w instructions; and a copy of his Motion for TRO; ( Mailed to P 2/3/2015. ) $350 filing fee due by 3/5/2015; Cl erk shall send P 2 copies this order and P shall arrange return of 1 copy with filing fee; If P does not file complaint and pay full fling fee, this action will be dismissed without prejudice. Signed by Judge Miranda M. Du on 2/3/2015. (Copies have been distributed pursuant to the NEF - DRM) Modified on 2/3/2015 for spelling (DRM).

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

***
LANCE REBERGER,

10

Plaintiff,

ORDER

v.

11
12

Case No. 3:15-cv-00064-MMD-VPC

MICHAEL BYRNE, et al.,
Defendants.

13
14
15

I.

DISCUSSION

16

Plaintiff, who is a prisoner in the custody of the Nevada Department of

17

Corrections (“NDOC”), has filed an application to proceed in forma pauperis and has

18

submitted a motion for temporary restraining order (“TRO”) and permanent injunction.

19

(Dkt. no. 1, 1-1.) Plaintiff has not filed a complaint.

20

Pursuant to 28 U.S.C. § 1915(g), “if [a] prisoner has, on 3 or more prior

21

occasions, while incarcerated or detained in any facility, brought an action or appeal in a

22

court of the United States that was dismissed on the grounds that it is frivolous,

23

malicious, or fails to state a claim upon which relief may be granted,” he may not

24

proceed in forma pauperis and, instead, must pay the full $350.00 filing fee in advance

25

unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

26

In Reberger v. Offender Mgmt. Div., 3:12-cv-293-LRH-VPC (D. Nev. Nov. 30,

27

2012) (order on mandate issued May 9, 2013), the Court found that, on at least two

28

other occasions, the Court had dismissed civil actions commenced by Plaintiff while in

1

detention for failure to state a claim.1 (Dkt. no. 9 at 5, in case no. 3:12-cv-293-LRH-

2

VPC). That court found that, at the conclusion of that case, Plaintiff would have obtained

3

his third strike based on the dismissal of that complaint as frivolous and for failure to

4

state a claim. (Id. at 7.) As such, Plaintiff may not proceed in forma pauperis in this

5

action unless he is “under imminent danger of serious physical injury.” 28 U.S.C. §

6

1915(g).

7

In the motion, Plaintiff seeks a TRO against Defendants Ely State Prison (“ESP”)

8

Associate Warden Michael Byrne, ESP CERT Member J. Parr, ESP CERT Member R.

9

Montoya, and ESP CERT Member E. Boardman. (Dkt. no. 1-1 at 1.) Plaintiff seeks an

10

immediate TRO and a permanent injunction to keep all Defendants 1000 yards away

11

from him. (Id.).

12

The motion alleges the following: On August 2, 2014, ESP medical personnel

13

sent Plaintiff to the intensive care unit (“ICU”) at the University Medical Center by plane

14

because Plaintiff was unconscious, sedated, and would not wake up. (Id. at 1-2.) While

15

on the emergency flight or while at the ICU, Parr was either caught by plane or ICU

16

personnel assaulting Plaintiff’s unconscious body. (Id. at 2.) The witness reported the

17

actions to a sergeant. (Id.) Shortly thereafter, Parr was removed from CERT, placed on

18

regular duty, and placed on probation for a period of time. (Id.)

19

On August 3, 2014, Plaintiff was revived and moved to a regular hospital room.

20

(Id.) Plaintiff examined his own body and noticed that his shins, knees, elbows, wrists,

21

and face contained cuts, scrapes, and bruising and that his hands and wrists were

22

completely swollen, bruised, and bleeding. (Id.)

23

On August 7, 2014, Plaintiff was released from UMC. (Id. at 3.) Plaintiff could

24

barely walk and was placed in a wheelchair for weeks. (Id.) Plaintiff suffered from brain

25

injuries and numb hands and wrists. (Id.) Prison officials took Plaintiff to the High Desert

26
27
28

1

See Reberger v. Cox et al., 2:10-cv-2022-GMN-GWF (dismissed for failure to
state a claim) (order on mandate issued Nov. 7, 2012) and Reberger v. Suter et al.,
3:11-cv-73-LRH-RAM (dismissed for failure to state a claim) (order on mandate issued
June 7, 2011).
2

1

State Prison (“HDSP”) infirmary. (Id.) Three weeks later, a medical doctor released

2

Plaintiff. (Id.)

3

On September 8, 2014, Plaintiff was placed in a van in his blue clothing for

4

transport to ESP with 12 other prisoners. (Id.) About half way to ESP, the prisoners got

5

out at a transport facility. (Id.) Plaintiff passed a CERT member who commented, “They

6

didn’t kill you.” (Id.) Prison officials switched the prisoners into orange jump suits and

7

placed black boxes over the prisoners’ cuffs for the last 167 miles to ESP. (Id.) During

8

the “strip out” into orange jump suits, Montoya told Plaintiff to “hurry the fuck up 3

9

times.” (Id.) Montoya put handcuffs on Plaintiff and then put Plaintiff’s hands into the

10

black box. (Id.) When Plaintiff had trouble putting his finger into the “loop to lock [the]

11

black box,” Boardman grabbed Plaintiff’s hand and shoved Plaintiff’s finger in the loop.

12

(Id.) When Plaintiff turned around, Montoya pulled Plaintiff’s finger from the loop and

13

said, “This is the dumb[est] mother fucker yet” and smacked Plaintiff on the right side of

14

his head. (Id.) Boardman turned Plaintiff toward the wall and then hit Plaintiff on the

15

back of his head and neck area and asked, “Why are you . . . such a dumb mother

16

fucker?” (Id.)

17

Prison officials put the prisoners back on the van and drove to ESP. (Id.) At ESP,

18

the van stopped at ESP’s box gate to check the prisoners’ identities. (Id.) While

19

stopped, Warden Bryne drove up and got out of his vehicle. (Id. at 3-4.) While Bryne

20

was near a group of officers and CERT members, one CERT member acted out

21

Boardman’s assault on Plaintiff and Byrne laughed and did nothing. (Id. at 4.)

22

While inside ESP, Plaintiff walked the wrong way and Montoya told Plaintiff that

23

he was a “dumb mother fucker” and kicked Plaintiff hard in the buttocks. (Id.) Plaintiff did

24

not say or do anything after each assault because he knew that he would get assaulted

25

much worse or murdered. (Id.)

26

In the past, when ESP prisoners were assaulted and filed grievances, they got

27

re-assaulted and murdered while at ESP. (Id.) Plaintiff knew that he was going to court

28

in Las Vegas and knew that he could not turn in a grievance until he left ESP. (Id.) On
3

1

January 13, 2015, Plaintiff turned in two assault grievances and made a note on the

2

Prison Rape Elimination Act (“PREA”) form that he had been assaulted, although not

3

sexually assaulted. (Id.) Caseworker Treadwell took note of Plaintiff’s allegation of

4

assault and spoke to Lt. Pugh. (Id.) Plaintiff wrote a letter to NDOC Director James Cox,

5

Attorney General Catherine Cortez Masto, and NDOC Inspector General Pam Delporto.

6

(Id. at 4-5.)

7

It is customary for HDSP to hold prisoners while they have court in Las Vegas.

8

(Id. at 5.) Plaintiff’s next court date is March 19, 2015. (Id.) Plaintiff believes that prison

9

officials will transport him back to ESP on the next transfer where CERT members will

10

be able to re-assault or murder Plaintiff at the transport facility or at ESP. (Id.) Plaintiff

11

alleges that the CERT members would do this because of Plaintiff’s own actions and

12

because he is a witness to two other assaults by ESP CERT members. (Id.) Plaintiff

13

states that he cannot file a 42 U.S.C. § 1983 complaint until the grievance process is

14

over but, in order to save his own life, he must file this immediate TRO to keep

15

Defendants and their friends away from him. (Id.)

16

The Court finds that these allegations fail to plausibly allege that Plaintiff is in

17

imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047,

18

1055 (9th Cir. 2007) (holding that the exception to § 1915(g) applies if the complaint

19

makes a plausible allegation that the prisoner faced imminent danger of serious

20

physical injury at the time of filing). First, Plaintiff is at HDSP and is not at ESP where

21

Defendants are located. As such, Plaintiff is unable to demonstrate that he faced

22

imminent danger of serious physical injury at the time of filing. Second, Parr’s actions

23

appear to be unrelated to Montoya and Boardman’s actions. Parr’s assault took place in

24

August 2014 and, due to a witness, Parr appears to have been disciplined. Plaintiff does

25

not allege that Montoya and Boardman’s actions in September 2014 were in retaliation

26

or related to any actions taken against him by Parr. Third, it is unclear why Plaintiff

27

believes he would be assaulted or murdered upon arrival at ESP. Plaintiff has not

28

alleged why his own actions or being a witness to two other assaults would cause
4

1

prison officials at ESP to assault or murder Plaintiff.1 Based on Plaintiff’s vague

2

allegations and conjectures, the Court is unable to conclude that Plaintiff faces imminent

3

danger of serious physical injury at the time of filing.

4

The Court denies Plaintiff’s motion for application to proceed in forma pauperis

5

(dkt. no. 1). If Plaintiff would like to continue to pursue these allegations, the Court

6

directs Plaintiff to file a § 1983 complaint2 and to pay the $350.00 filing fee in full within

7

thirty (30) days of entry of this order.

8

The Court also denies the motion for TRO (dkt. no. 1-1). Based on the reasons

9

discussed above, Plaintiff fails to demonstrate that he would suffer irreparable harm in

10

the absence of preliminary relief. See Am. Trucking Ass’ns, Inc. v. City of Los Angeles,

11

559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter v. Natural Res. Defense Council,

12

555 U.S. 7, 20 (2008)) (holding that “[a] plaintiff seeking a preliminary injunction must

13

establish that he is likely to succeed on the merits, that he is likely to suffer irreparable

14

harm in the absence of preliminary relief, that the balance of equities tips in his favor,

15

and that an injunction is in the public interest”).

16

II.

For the foregoing reasons, it is ordered that Plaintiff’s application to proceed in

17
18

forma pauperis (dkt. no. 1) is denied.
It is further ordered that the motion for temporary restraining order/preliminary

19
20

CONCLUSION

injunction (dkt. no. 1-1) is denied.
It is further ordered that if Plaintiff wishes to pursue this action, he shall submit a

21
22

complaint to this Court within thirty (30) days of entry of this order.

23

///

24

///

25
26
27
28

1

To the contrary, Plaintiff represents that he has recently filed two assault
grievances for the treatment that he suffered at ESP. (Dkt. no. 1-1 at 4.) Plaintiff does
not allege why his concerns as to the potential harm to him cannot be raised in these
grievances.
2
Pursuant to Federal Rule of Civil Procedure 3, “[a] civil action is commenced by
filing a complaint with the court.” Fed. R. Civ. P. 3.
5

1

It is further ordered that the Clerk of the Court shall send to Plaintiff the approved

2

form for filing a 42 U.S.C. § 1983 complaint, instructions for the same, and a copy of his

3

motion for temporary restraining order (dkt. no. 1-1).

4
5

It is further ordered that if Plaintiff wishes to pursue this action, he shall pay the
$350.00 filing fee in full within thirty (30) days of entry of this order.

6

It is further ordered that the Clerk of the Court shall send Plaintiff two (2) copies

7

of this order. Plaintiff shall make the necessary arrangements to have one (1) copy of

8

this order attached to the check paying the filing fee.

9

It is further ordered that if Plaintiff does not file a complaint and pay the full

10

$350.00 filing fee within thirty (30) days of entry of this order, this action will be

11

dismissed without prejudice.

12
13

DATED THIS 3rd day of February 2015.

14
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26
27
28
6