Hawthorne v. Bennington et al

Filing 11

ORDER that the IFP Application (ECF No. 1 ) and Motion for Clarification (ECF No. 9 ) are DENIED as moot; the Motion for Leave to File Third Amended Complaint (ECF No. 10 ) is GRANTED IN PART and DENIED IN PART; Clerk directed to file the Third Amended Complaint (ECF No. 10 -1); the Third Amended Complaint is DISMISSED for failure to state a claim; Clerk directed to enter judgment and close this case. Signed by Judge Robert C. Jones on 4/16/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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ADAM HAWTHORNE,
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Plaintiff,
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vs.
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MACKENZIE BENNINGTON et al.,
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Defendants.
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3:16-cv-00235-RCJ-VPC
ORDER

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

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screens the Complaint, as amended, under 28 U.S.C. § 1915A.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Adam Hawthorne is a prisoner in the custody of the Nevada Department of

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Corrections. He alleged constitutional violations against various Defendants arising out of

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events at Northern Nevada Correctional Center. The Court dismissed due process and First

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Amendment retaliation claims, without leave to amend, and dismissed an Eighth Amendment

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deliberate indifference claim, with leave to amend. The Court ruled that the Eighth Amendment

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claim was essentially a medical malpractice claim. Plaintiff had concluded, but had made no

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factual allegation, that Nurse MacKenzie Bennington subjectively believed he was not

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malingering yet chose not to treat him when he complained of back pain on January 2, 2016.

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Plaintiff filed the Second Amended Complaint (“SAC”), noting again that Nurse

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Bennington responded to his medical emergency on January 2, 2016 and asked him what the

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problem was. Bennington refused to examine his back, refused to call for additional help or

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medical advice, noted she was the only medical staff on duty, and said that there was nothing she

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could do for him. She noted that she did not have the authority to prescribe pain medication.

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She did not examine him but stated there was nothing wrong with him and left. She gave him no

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pain pills or referral for a doctor. Only after six days did a doctor examine him and provide a

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wheelchair, cane, and pain pills. (The Court has not repeated allegations relevant only to claims

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that have been dismissed without leave to amend.) Via the SAC, Plaintiff added Warden Isidro

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Baca and Medical Director John Keast as Defendants based on their alleged failure to ensure

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adequate staffing of medical personnel, which resulted in Bennington being the only medical

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professional on staff during Plaintiff’s emergency.
Plaintiff has also asked for leave to file a Third Amended Complaint (“TAC”). The TAC

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names Bennington, Baca, Nurse Candice Brockaway, Senior Correctional Officer Stanley

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Shinault, and Director of Nursing John Perry as Defendants but omits Keast. The allegations

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concern the January 2, 1016 incident with Bennington. Although Plaintiff has used multiple

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copies of the same pages of the form complaint, such that it appears there may be multiple

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counts, the Court perceives a single count.

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II.

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LEGAL STANDARDS
Federal courts must screen any case in which a prisoner seeks redress from a

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governmental entity or its officers or employees. 28 U.S.C. § 1915A(a). The court must identify

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cognizable claims and dismiss claims that are frivolous, malicious, fail to state a claim, or seek

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monetary relief from an immune defendant. See 28 U.S.C. § 1915A(b). This includes claims

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based on fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327–28 (1989).

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Also, when a prisoner seeks to proceed without prepayment of fees, a court must dismiss if “the

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allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A).

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When screening claims for failure to state a claim, a court uses the same standards as

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under Rule 12(b)(6). Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Federal Rule of

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Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the

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pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is

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and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). A motion to

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dismiss under Rule 12(b)(6) tests the complaint’s sufficiency, see N. Star Int’l v. Ariz. Corp.

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Comm’n, 720 F.2d 578, 581 (9th Cir. 1983), and dismissal is appropriate only when the

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complaint does not give the defendant fair notice of a legally cognizable claim and the grounds

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on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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A court treats factual allegations as true and construes them in the light most favorable to

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the plaintiff, NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986), but does not accept as

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true “legal conclusions . . . cast in the form of factual allegations.” Paulsen v. CNF Inc., 559 F.3d

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1061, 1071 (9th Cir. 2009). A plaintiff must plead facts pertaining to his case making a violation

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“plausible,” not just “possible.” Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009) (citing Twombly,

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550 U.S. at 556) (“A claim has facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.”). That is, a plaintiff must not only specify or imply a cognizable legal theory (Conley

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review), he must also allege the facts of his case so that the court can determine whether he has

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any basis for relief under the legal theory he has specified or implied, assuming the facts are as

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he alleges (Twombly-Iqbal review).

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“Generally, a district court may not consider any material beyond the pleadings in ruling
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 on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

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& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

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whose contents are alleged in a complaint and whose authenticity no party questions, but which

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are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

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motion to dismiss” without converting the motion to dismiss into a motion for summary

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judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Also, under Federal Rule

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of Evidence 201, a court may take judicial notice of “matters of public record” if not “subject to

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reasonable dispute.” United States v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011).

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Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss

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is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp.

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Agency, 261 F.3d 912, 925 (9th Cir. 2001).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) violation of a right

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secured by the Constitution or laws of the United States (2) by a person acting under color of

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state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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III.

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ANALYSIS
The Court grants leave to amend to file the TAC in part, i.e., as to the allegations relevant

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to the deliberate indifference claim. The Court does not give leave to amend as to dismissed

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claims where leave to amend has already been denied.

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The Court first dismisses Baca, Perry, and Shinault as Defendants. Plaintiff alleges Baca

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and Perry instituted a policy that inmates filing emergency medical grievances should be

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disciplined with false charges for lying to staff and/or malingering, and that Shinault carried out

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the policy as the hearing officer, finding Plaintiff guilty. But Plaintiff again appears to admit that

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a result of the charges was either the loss of good time credits or simply the inability to earn

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discretionary work credits. As noted in the previous screening order, if the former, the claim is

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not cognizable unless and until the discipline is vacated, and if the latter, the claim does not

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implicate due process. And as to the claim that the allegedly false charges were in retaliation for

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him threatening a grievance against Bennington, “a prisoner cannot maintain a retaliation claim

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when he is convicted of the actual behavioral violation underlying the alleged retaliatory false

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disciplinary report and there is evidence to sustain the conviction.” O’Bryant v. Finch, 637 F.3d

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1207, 1215 (11th Cir. 2011) (citing Hartsfield v. Nichols, 511 F.3d 826, 829 (8th Cir. 2008)).

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Anyway, Plaintiff had no leave to amend these dismissed claims.
Next, as to Bennington, the Court previously informed Plaintiff that medical negligence,

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no matter how allegedly gross, was insufficient to state a claim for deliberate indifference to

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serious medical needs, and that Plaintiff must allege facts sufficient to show deliberate

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indifference. Because Plaintiff had not alleged factual allegations that would show that

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Bennington believed that Plaintiff was not malingering and sought to punish him, the Court

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dismissed the claim, with leave to amend. Plaintiff has not added any additional factual

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allegations that would show deliberate indifference. The Court therefore dismisses with

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prejudice the Eighth Amendment claim for deliberate indifference to serious medical needs.
Finally, the Court notes there are no substantive allegations against Brockaway. She is

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simply listed as a Defendant. The Court therefore dismisses as against her, as well.

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CONCLUSION

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IT IS HEREBY ORDERED that the Application for Leave to Proceed in Forma Pauperis
(ECF No. 1) and the Motion for Clarification (ECF No. 9) are DENIED as moot.

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IT IS FURTHER ORDERED that the Motion for Leave to File Third Amended

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Complaint (ECF No. 10) is GRANTED IN PART and DENIED IN PART, and the Clerk shall

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file the Third Amended Complaint (ECF No. 10-1).

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IT IS FURTHER ORDERED that the Third Amended Complaint is DISMISSED for
failure to state a claim, and the Clerk shall enter judgment and close the case.
IT IS SO ORDERED.
Dated this 16th day of April, 2018.
12th

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_____________________________________
ROBERT C. JONES
United States District Judge

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