Sooga v. Baker et al

Filing 9

SCREENING ORDER denying as moot 4 , 7 IFP applications; dismissing 8 Amended Complaint; certifying that any IFP appeal from this order would not be taken in good faith; directing Clerk to enter judgment accordingly. Signed by Judge Robert C. Jones on 12/4/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TUIOFU SOOGA,
Plaintiff,

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v.

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WARDEN RENEE BAKER, ASSISTANT
WARDEN BYRNE, JESSICA TRAVIS,
CORRECTIONAL OFFICER CHAVEZ,

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Defendants.

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3:15-cv-00206-RCJ-WGC
SCREENING ORDER ON
AMENDED COMPLAINT

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

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(“NDOC”), has submitted an amended civil rights complaint pursuant to 42 U.S.C. § 1983 and

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has filed two applications to proceed in forma pauperis. (ECF No. 4. 7, 8). The Court now

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screens Plaintiff’s amended 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 on 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. § 1915(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. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. § 1983, a

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

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

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on which relief may be granted, or seeks monetary relief against a defendant who is immune

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

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upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6),

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and the court applies the same standard under § 1915 when reviewing the adequacy of a

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complaint or an amended complaint. When a court dismisses a complaint under § 1915(e),

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the plaintiff should be given leave to amend the complaint with directions as to curing its

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deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be

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cured by amendment. 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, 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 claim 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

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

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as 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 AMENDED COMPLAINT

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

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while Plaintiff was incarcerated at Ely State Prison (“Ely”). (ECF No. 8 at 1). Plaintiff sues

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Warden Renee Baker, Assistant Warden Byrne, Caseworker Jessica Travis, a John Doe

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Doctor, and the Mental Health Department at Ely.1 (Id. at 2-3). Plaintiff alleges three counts

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and seeks monetary damages. (Id. at 4-6, 9).

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Plaintiff alleges the following: Plaintiff has been charged $30,000 in restitution for a

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physical altercation that occurred on November 28, 2013. (Id. at 3). At that time, Plaintiff was

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shot twice with live shotgun rounds and suffered injuries and pain. (Id.). Plaintiff was sent

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back to prison on November 29, 2013 and never received effective treatment. (Id.). Plaintiff

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asserts a due process violation, deliberate indifference to his serious medical needs, and First

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Amendment retaliation.

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A)

Count I

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In Count I, Plaintiff asserts he has been charged $30,000 in restitution without due

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The Medical Department of Ely is part of the Nevada Department of Corrections, a

state agency, and is immune from actions brought under § 1983. See Hunt v. Dental Dept.,
865 F.2d 198, 200-201 (9th Cir. 1989). As such, the Court dismisses with prejudice all claims
against the Medical Department of Ely, as amendment would be futile.
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process of law. Plaintiff filed two grievances on the matter that were denied. (ECF No. 8 at

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4). Defendant Baker denied one grievance on January 26, 2015, and Defendant Byrne denied

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the other on May 21, 2015. (Id.).

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Plaintiff indicates he is being deprived of his property and alleges that Defendants

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Baker and Byrne denied the grievances he wrote which allege he was denied due process of

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law. (Id. at 4). While the standard under Rule 12(b)(6) does not require detailed factual

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allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of

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action is insufficient. Id. Plaintiff fails to state a colorable claim of a violation of due process.

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Plaintiff does not identify what process he was deprived, but instead alleges a legal

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conclusion: that he was deprived of due process. As such, Plaintiff’s due process claim is

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dismissed without prejudice.

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B)

Count II

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Plaintiff alleges deliberate indifference to his serious medical need in that medical staff

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have not provided adequate treatment for his back pain. Plaintiff asserts Defendant John Doe

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Doctor improperly evaluated his injury. (ECF No. 8 at 5). Additionally, Plaintiff asserts

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Defendant John Doe Doctor has not provided Plaintiff with proper mental health treatment

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even though Plaintiff has alerted mental health staff as to his mental health status. (Id.).

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The Eighth Amendment prohibits the imposition of cruel and unusual punishments 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) (citation and internal quotations

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omitted).

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[A] prison official violates the Eighth Amendment only when two requirements
are met. First, the deprivation alleged must be, objectively, ‘sufficiently
serious[;]’ a prison official’s act or omission must result in the denial of ‘the
minimal civilized measure of life’s necessities’ [.] . . .
The second requirement follows from the principle that ‘only the unnecessary
and wanton infliction of pain implicates the Eighth Amendment.’ To violate the
Cruel
and Unusual Punishments Clause, a prison official must have a ‘sufficiently
culpable state of mind.’

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Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted). In this case, Plaintiff alleges

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deliberate indifference to a serious medical need. Deliberate indifference is satisfied by

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showing “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical

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need and (b) harm caused by the indifference.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.

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2006) (citation omitted). Indifference “may appear when prison officials deny, delay or

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intentionally interfere with medical treatment, or it may be shown by the way in which prison

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physicians provide medical care.” However, a difference of opinion between the physician

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and the prisoner concerning the appropriate course of treatment does not amount to

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deliberate indifference to serious medical needs. See Toguchi v. Chung, 391 F.3d 1052, 1058

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(9th Cir. 2004).

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Plaintiff’s complaint fails to satisfy the general pleading requirements outlined in

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Twombly: while the standard under Rule 12(b)(6) does not require detailed factual allegations,

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a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007). Plaintiff provides no description of what treatment the doctor

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provided or why and how that treatment is inadequate. Plaintiff’s bald opinion that the

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treatment is inadequate amounts to an unsupported difference of opinion and is insufficient

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to state a colorable claim of deliberate indifference to a serious medical need.

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Plaintiff’s complaint is similarly deficient regarding his allegation of inadequate mental

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health treatment. Plaintiff’s allegations amount to unsupported legal conclusions. As such,

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Plaintiff’s claim of deliberate indifference to his serious medical need is dismissed without

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prejudice.

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C)

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Plaintiff alleges he suffered retaliation for exercising his First Amendment rights.

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Plaintiff alleges Defendant Travis “called him up” with a sex offender against his wishes. (ECF

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No. 8 at 6). Plaintiff refused to comply and as a result was sent to administrative segregation

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and lost property. (Id.). Additionally, Plaintiff alleges Defendant Travis interfered with his

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mental health treatment by telling medical staff Plaintiff is pretending to have a condition.

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(Id.).

Count III

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There are five basic elements for a viable claim of First Amendment retaliation in the

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prison context: (1) An assertion that a state actor took some adverse action against an inmate

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(2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably

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advance a legitimate correctional goal. Brodheim, v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)

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(citation omitted).

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Plaintiff alleges he was sent to administrative segregation and lost property because

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he refused to be called up with a sex offender. Plaintiff has not identified protected speech

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he made under the First Amendment. Moreover, Plaintiff has not alleged he suffered adverse

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action as the result of his expression of protected speech, but rather for his refusal to comply.

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As such, Plaintiff fails to state a colorable claim of First Amendment retaliation. This claim is

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dismissed with prejudice, as amendment would be futile.

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IV.

NEW CLAIMS IN AMENDED COMPLAINT

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In the Court’s initial screening order, it granted Plaintiff leave to file an amended

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complaint to cure the deficiencies of his original complaint. (See ECF No. 5 at 6:2-3). In

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Plaintiff’s amended complaint, he alleged two brand new claims in Counts I and II. Plaintiff

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may not exploit the amendment process to litigate a new lawsuit by bringing claims unrelated

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to those pled in his original complaint. See Bryant v. Romero, No. 1:12-CV-020740DLB PC,

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2013 WL 5923108, at *4 (E.D. Cal. Nov. 1, 2013) (citing George v. Smith, 507 F.3d 605, 607

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(7th Cir. 2007) (stating a plaintiff may not change the nature of a suit by adding new, unrelated

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claims in his amended complaint)). As such, while the Court dismisses Counts I and II without

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prejudice, Plaintiff is not granted leave to amend. If Plaintiff wishes to pursue Counts I and

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II, he must do so in a new complaint.

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III.

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

proceed in forma pauperis (ECF No. 4, 7) is denied as moot.

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IT IS FURTHER ORDERED that the amended complaint (ECF No. 8) is dismissed.

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IT IS FURTHER ORDERED that this Court certifies that any in forma pauperis appeal
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from this order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3).
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.
Dated: This 4th day of December, 2015.
DATED: This _____ day of December, 2015.

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_________________________________

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United States District Judge

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