Holden v. State of Nevada et al

Filing 57

ORDER that Plaintiffs Amended Motion for Leave to Amend ECF No. 37 is GRANTED; Clerk shall FILE the Second Amended Complaint (ECF No. 37 at 8-29); Plaintiff may proceed with the claims and defendants asserted, except Plaintiff may not proceed against the State of Nevada, ex rel. NDOC; the AGs Office to file a notice advising the court whether it will accept service on behalf of the defendants by 10/02/2017; if it does not accept service for any of those d efendants, it shall file their last known address under seal (and not serve the inmate plaintiff); if service is not accepted for any of the new defendants, Plaintiff shall file a motion identifying the unserved defendant(s) and requesting issuance o f a summons and service of the summons and complaint; defendants on whose behalf the Attorney General has accepted service, the defendants shall file and serve an answer or other responsive pleading within 21 days of the date a notice of acceptance of service is filed; current scheduling order deadlines are VACATED. Signed by Magistrate Judge William G. Cobb on 09/18/2017. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
JIM BASS HOLDEN,
8
9
10
11
12

)
)
Plaintiff,
)
)
vs.
)
)
STATE OF NEVADA, ex. rel., NEVADA )
DEPARTMENT OF CORRECTIONS, et al., )
)
Defendants.
)
______________________________________)

3:16-cv-00064-MMD-WGC
ORDER
Re: ECF No. 37

13
14

Before the court is Plaintiff’s Amended Motion for Leave to File 2nd Amended Complaint.

15

(ECF No. 37.) Defendants filed a response (ECF No. 46), and Plaintiff filed a reply (ECF No. 48). For

16

the reasons stated below, Plaintiff’s motion is granted.

17

I. BACKGROUND

18

Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC),

19

proceeding with this action pursuant to 42 U.S.C. § 1983. (Pl.’s First Am. Compl., ECF No. 3.) While

20

he filed his complaint and FAC pro se, he is now represented by counsel. (See ECF No. 28.) The events

21

giving rise to this action took place while Plaintiff was housed at High Desert State Prison (HDSP),

22

Lovelock Correctional Center (LCC), and Northern Nevada Correctional Center (NNCC).

23

On screening, Plaintiff was permitted to proceed with claims under the Eighth Amendment and

24

Nevada Constitution for deliberate indifference to his health, safety and serious medical needs based on

25

allegations: that Defendants instituted policies which deprived him of protection from the sun while he

26

resided in HDSP’s administrative segregation (ad-seg) unit; and, when he attempted to seek medical

27

treatment for his changing moles, freckles and skin lesions for four years, and even when prison officials

28

knew some of his lesions were cancerous, they refused to look at other lesions and order biopsies or
properly treat his condition. (Screening Order, ECF No. 4.)

1

Plaintiff was allowed to proceed with these claims in the FAC against the following defendants:

2

James Greg Cox, E.K. McDaniel, Dr. Robert Bannister, Pamela Del Porto, Chuck Schardin, Dwight

3

Neven, Timothy Filson, Dr. Ted Hanf, Nurse Practitioner Fey, Dr. James Holmes, Dr. Romeo Aranas,

4

and Dr. William Donnelly. (Id.) Nurse Practitioner Fey was subsequently dismissed without prejudice

5

pursuant to Federal Rule of Civil Procedure 4(m) on April 24, 2007. (ECF No. 41.) Plaintiff served

6

Dr. Holmes via publication. (See ECF Nos. 30, 31, 33, 44.)

7

Plaintiff now seeks leave to file a Second Amended Complaint (SAC). In their opposition to

8

Plaintiff’s motion, Defendants assert two arguments for denying Plaintiff’s motion: (1) Plaintiff has

9

already amended his complaint once as a matter of course; and (2) amendment would be futile, at least

10

as to Counts I-III, because Plaintiff fails to allege that the defendants named in those counts knew of and

11

disregarded an excessive risk to inmate health or safety through the alleged policies.

12

II. LEGAL STANDARD

13

“A party may amend its pleading once as a matter of course within: (A) 21 days after serving it,

14

or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a

15

responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is

16

earlier.” Fed. R. Civ. P. 15(a)(1)(A), (B). Otherwise, a party must seek the opposing party’s written

17

consent or leave of court to amend a pleading. Fed. R. Civ. P. 15(a)(2). Here, Plaintiff was required to

18

seek leave to amend.

19

“The court should freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to

20

amend need not be given where amendment: “(1) prejudices the opposing party; (2) is sought in bad

21

faith; (3) produces an undue delay in litigation; or (4) is futile.” Amerisource Bergen Corp. v. Dialysist

22

West, Inc., 465 F.3d 946, 951 (9th Cir. 2006) (citation omitted).

23

III. DISCUSSION

24

First, insofar as Defendants’ argue that the motion should be denied because Plaintiff has already

25

amended once as a matter of course, the court finds that argument to be meritless. Federal Rule of Civil

26

Procedure 15 specifically allows a party to amend a pleading once as a matter of course within twenty-

27

one days after service, or within twenty-one days of the service of a responsive pleading or motion, and

28

otherwise, by obtaining consent of the opposing party or with the court’s leave. Fed. R. Civ. P. 15(a)
2

1

(emphasis added). “Rule 15 provides different ways to amend a complaint, and these ways are not

2

mutually exclusive.” Ramirez v. County of San Bernardino, 806 F.3d 1002, 1007 (9th Cir. 2015).

3

Plaintiff is within the confines of Rule 15 in seeking to amend with the court’s leave even though he

4

already amended once as a matter of course.

5
6
7
8

Second, the court will turn to Defendants’ argument that amendment would be futile with respect
to Counts I-III of the SAC.
Leave to amend may be denied if the proposed amendment is futile or would be subject to
dismissal. Carrico v. City & County of San Francisco, 656 F.3d 1002, 1008 (9th Cir. 2011).

9

The proposed SAC removes some defendants and adds certain others. Specifically, the proposed

10

SAC names: State of Nevada ex rel Nevada Department of Corrections; HDSP Warden Dwight Neven,

11

Associate Warden of HDSP Timothy Filson, NDOC Director James G. Cox, NDOC Deputy Director

12

E.K. McDaniel, HDSP Associate Warden Isidro Baca, HDSP Associate Warden Bruce D. Stroud,

13

HDSP Associate Warden Jennifer S. Nash, HDSP Associate Warden Cole T. Morrow, HDSP Associate

14

Warden Jerry L. Howell, HDSP Associate Warden Harold J. Wickham, HDSP Associate Warden James

15

S. Henson, Commissioner of the Nevada Board of State Prison Commissioners (NBPC) Brian Sandoval,

16

Commissioner of the NBPC Barbara Cegavske, Commissioner of the NBPC Adam Laxalt, NDOC

17

Medical Director R. Bruce Bannister, NDOC Senior Physician and NDOC Medical Director Romeo

18

Aranas, Dr. James E. Holmes, Dr. Ted D. Hanf, Dr. David Hipkin, and Dr. William Donnelly. (ECF No.

19

37 at 8-9.)

20

The factual allegations contained in the proposed SAC are substantially similar to those

21

contained in the First Amended Complaint, with the addition of allegations relative to the parties

22

Plaintiff claims are responsible for promulgating policies, practices or procedures that resulted in his

23

being placed in a cage without adequate protection from the sun while in ad-seg at HDSP and denied

24

access to sunscreen from either the prison store or medical department. These allegations give rise to the

25

claims set forth in Counts I-III.

26

Defendants argue that Plaintiff fails to allege that the defendants named in these three counts

27

knew of and disregarded an excessive risk to inmate health or safety through NDOC’s policies of

28

allowing HDSP inmates to recreate in uncovered closures, prohibiting inmates in HDSP ad-seg units
3

1

from purchasing sunscreen, and failing to allow HDSP ad-seg prisoners to access sunscreen from the

2

medical department. The court disagrees.

3

The Eighth Amendment prohibits the imposition of cruel and unusual punishments. U.S. Const.

4

amend. VIII. Prison officials must “provide humane conditions of confinement” and “ensure that inmates

5

receive adequate food, clothing, shelter and medical care, and must ‘take reasonable measures to

6

guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted).

7

Officials violate the Eighth Amendment when their action is objectively, sufficiently serious, meaning

8

it results in “the denial of the minimal civilized measure of life’s necessities[,]” and the official “knows

9

of and disregards an excessive risk to inmate health or safety.” Id. at 834, 837 (citations and quotation

10

marks omitted).

11

Plaintiff alleges that he was provided outside recreation as an ad-seg inmate at HDSP by being

12

placed in a steel cage for one to three hours during spring and summer months without any type of

13

covering to shield him from the direct rays of the sun, when these Defendants were aware that

14

temperatures at HDSP regularly exceed 100 degrees during these months. (ECF No. 37 at 14 ¶¶ 51-53,

15

ECF No. 37 at 21 ¶¶ 117-118.)

16

He alleges that when he attempted to order sunscreen from the HDSP prison store, his order was

17

rejected on the basis that squeeze bottle products such as sunscreen were not permitted to be sold to ad-

18

seg prisoners. (ECF No. 37 at 14 ¶¶ 54-55, ECF No. 37 at 22 ¶ 123.) He claims that these Defendants

19

were aware temperatures regularly exceeded 100 degrees in the spring and summer months; that

20

sunscreen was needed to aid prisoners in preventing skin cancers; and, these Defendants took no

21

alternative measures to ensure HDSP ad-seg prisoners would still be allowed to purchase sunscreen by

22

making it available in the prison store in a form that did not pose a safety or security risk. (ECF No. 37

23

at 14 ¶ 55; ECF No. 37 at 22 ¶¶ 123-25.)

24

Plaintiff goes on to allege that he requested sunscreen from the HDSP medical department, only

25

to be told he had to purchase it from the prison store, which had already denied his request. (ECF No.

26

37 at 14-15 ¶¶ 56-57.) He claims that these Defendants failed to ensure that the HDSP medical

27

department provided sunscreen to requesting prisoners in HDSP ad-seg when they were not permitted

28

to purchase it from the HDSP store due to their policy. (Id. at 15 ¶ 57, ECF No. 37 at 23 ¶ 131.)
4

1

Defendants argue that Plaintiff has not sufficiently alleged they knew of an excessive risk to

2

Plaintiff’s health or safety. It is not clear whether they contend this to be the case because he did not use

3

the word “excessive,” or they do not think the allegations give rise to a claim that the Defendants’

4

alleged conduct posed an excessive risk to his health, or both. In any case, the court finds the allegations

5

are sufficient. Plaintiff alleges that these defendants promulgated policies of housing inmates in ad-seg

6

where their recreation time was spent in an uncovered cage for one to three hours a day; knowing that

7

temperatures were regularly above 100 degrees during spring and summer months; knowing the inmates

8

had no access to any method of protection from the sun whether it be from sunscreen, a covering over

9

the cage, or protective clothing; and, they did so knowing the inmates needed protection from skin

10

cancer. Therefore, he has adequately alleged they knew of and disregarded an excessive risk to his health

11

and safety.

12

As a result, Plaintiff should be given leave to amend to file the SAC.

13

IV. CONCLUSION

14

(1) Plaintiff’s Amended Motion for Leave to Amend (ECF No. 37) is GRANTED.

15

(2) The Clerk shall FILE the SAC (ECF No. 37 at 8-29).

16

(3) Plaintiff may proceed with the claims and defendants asserted in the SAC, except that

17
18

Plaintiff may not proceed against the State of Nevada, ex rel. NDOC.1
///

19
20
21
22
23
24
25
26
27
28

1

States are not persons for purposes of section 1983. See Arizonans for Official English v. Arizona, 520 U.S. 43,
69 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). A governmental agency that is an arm of the state
is not a person subject to suit under section 1983. See Howlett v. Rose, 496 U.S. 356, 365 (1990); Flint v. Dennison, 488
F.3d 816, 824-25 (9th Cir. 2007). A state’s department of corrections is an arm of the state, and therefore cannot be sued
in a section 1983 action for damages. See Alabama v. Pugh, 438 U.S. 781, 782 (1978). Moreover, Eleventh Amendment
immunity bars section 1983 actions for damages against state agencies, as well as those where the state itself is named as a
defendant, and where state officials are sued in their official capacity. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,
Inc., 506 U.S. 139, 144 (1993); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department
of Prisons was a state agency entitled to Eleventh Amendment immunity).

5

1

(4) Within FOURTEEN (14) DAYS of the date of this Order, the Attorney General’s Office

2

shall file a notice advising the court whether it will accept service on behalf of the defendants named in

3

the SAC. If it does not accept service for any of those defendants, it shall file their last known address

4

under seal (and not serve the inmate plaintiff). If the last known address is a post office box, the Attorney

5

General’s Office shall attempt to obtain and provide the last known physical address(es). If service is

6

not accepted for any of the new defendants, Plaintiff shall file a motion identifying the unserved

7

defendant(s) and requesting issuance of a summons and service of the summons and complaint.

8

(5) For those defendants on whose behalf the Attorney General has accepted service, the

9

defendants shall file and serve an answer or other responsive pleading within TWENTY-ONE (21) days

10
11
12

of the date a notice of acceptance of service is filed.
(6) The current scheduling order deadlines are VACATED. Once a responsive pleading is filed
as to the SAC, the court will issue a new scheduling order, or set a status conference, if necessary.

13

IT IS SO ORDERED.

14

DATED: September 18, 2017.

15
16
17

__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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