Ruiz v. Nevada Department of Corrections et al

Filing 3

ORDER that a decision on the IFP Application (ECF No. 1 ) is DEFERRED; Clerk directed to file the Complaint (ECF No. 1 -2); the Complaint is DISMISSED, with leave to amend by 12/7/2018; Clerk directed to send Plaintiff the ap proved form for filing a § 1983 complaint, instructions, and a copy of ECF No. 1 -2 Complaint (Attached hereto for distribution); a separate screening order will be done by the court if an amended complaint is filed; if Plaintiff does no t timely file an amended complaint, the Court may dismiss the entire action with prejudice without further notice. Signed by Judge Robert C. Jones on 11/9/2018. (Attachments: # 1 Civil Rights Complaint Form and Instructions, # 2 Original Complaint 1-2)(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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CARLOS RUIZ,
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Plaintiff,
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vs.
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NEVADA DEPARTMENT OF
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CORRECTIONS et al.,
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Defendants.
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3:17-cv-00643-RCJ-WGC
ORDER

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Plaintiff Carlos Ruiz, a prisoner in the custody of the Nevada Department of Corrections

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(“NDOC”), has submitted a civil rights Complaint under 42 U.S.C. § 1983, attached to an

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application to proceed in forma pauperis. The Court now screens the Complaint under 28 U.S.C.

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§ 1915A.

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I.

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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 or malicious, fail to state a claim, or seek

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monetary relief from an immune defendant. Id. § 1915A(b). This includes claims based on

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

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

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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 under Rule

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

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

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

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

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under Rule 12(b)(6) tests the complaint’s sufficiency, N. Star Int’l v. Ariz. Corp. Comm’n, 720

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F.2d 578, 581 (9th Cir. 1983), and dismissal is appropriate only when the complaint does not

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give the defendant fair notice of a legally cognizable claim and the grounds on which it rests,

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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

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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 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 of

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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. Arpin v. Santa Clara Valley Transp. Agency,

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261 F.3d 912, 925 (9th Cir. 2001).
To state a claim under § 1983, a plaintiff must allege (1) violation of a right secured by

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the Constitution or laws of the United States (2) by a person acting under color of state law. West

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v. Atkins, 487 U.S. 42, 48 (1988).

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II.

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ANALYSIS
Plaintiff lists two nominal counts but lists the same eight provisions of law under each.

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Plaintiff alleges that since December 2016, Defendants have failed to treat his back pain and

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refused him continued use of a back brace despite his limited mobility, trouble standing for long

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periods of time, fatigue, numbness, and pain. He alleges his request for a lower bunk has been

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ignored. He also appears to allege that the refusal to treat him is retaliation for one or more

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grievances.

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A.

Deliberate Indifference Under the Eighth Amendment

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Plaintiff makes allegations about his pain not being sufficiently treated and not being

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given a bottom bunk. He alleges his back brace was taken away, that a follow-up appointment

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for his condition was delayed for an unspecified period, and that his ibuprofen was withheld for

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an unspecified period of time. The Court cannot determine, given the few allegations, that any

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Defendant has been deliberately indifferent to Plaintiff’s serious medical needs. At most, he has

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alleged that he has back pain that is not being treated to his satisfaction. This is insufficient to

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state either the objective or the subjective prong of an Eighth Amendment deliberate indifference

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claim as against any particular Defendant. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);

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Estelle v. Gamble, 429 U.S. 97, 104 (1976). This claim is dismissed, with leave to amend.

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B.

The First Amendment and 42 U.S.C. § 1997d

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Plaintiff concludes the refusal to treat his back pain and the taking of his back brace was

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“d[ue] to medical costs and reprisal to redress of gr[ievances].” But Plaintiff makes no factual

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allegations that support that conclusion, Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.

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2004), not even a bare temporal proximity between his complaint(s) and the alleged reprisal(s),

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Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001); Curley v. City of N. Las Vegas,

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772 F.3d 629, 634 (9th Cir. 2014). Accordingly, he has stated no retaliation claim but will be

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given leave to amend. Plaintiff also invokes 42 U.S.C. § 1997d, but that statute concerns

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retaliation against those who report prison conditions that precipitate an action by the U.S.

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Attorney General under § 1997a. Plaintiff makes no allegation concerning any action under

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§ 1997a. Accordingly, this claim is also dismissed, with leave to amend.

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He also alleges that one or more Defendants delayed a response to one of his grievances

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in order to hinder or discourage his complaints, which the Court may read either as a retaliation

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claim or as a claim for denial of the right to petition for redress of grievances. As to retaliation, a

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prisoner of ordinary firmness could not have had his complaints chilled in this way, Rhodes, 408

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F.3d at 568–69, because a grievance is immediately exhausted if no timely response is received,

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Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017). It would be counterproductive for a

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corrections defendant aiming to frustrate a grievance to refuse a response, because responding

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according to the normal timeline within a multi-level grievance system will delay a civil claim

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longer than refusing to timely respond at any intermediate stage. See id. And Plaintiff does not

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allege that any claim was in fact frustrated via any delay in processing his grievances, so an

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access-to-the-courts claim fails. The First Amendment claims are dismissed, with leave to

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amend.
34 U.S.C. § 12361 1

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C.

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This statute creates a cause of action for victims of violent crimes motivated by gender.

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Plaintiff makes no allegation of having been the victim of a violent crime. This claim is

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dismissed, with leave to amend.

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D.

The Americans with Disabilities Act (“ADA”)

Plaintiff cites the definitions section of the ADA, 42 U.S.C. § 12131. Presumably, he

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means to bring a claim under the ADA. The ADA applies to state prisons. Pa. Dep’t of Corr. v.

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Yeskey, 524 U.S. 206, 209–10 (1998). But Plaintiff has stated no claim. He appears to imply a

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failure-to-accommodate-type claim, i.e., the failure to assign him to a lower bunk. But although

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he alleges back pain and “limited mobility,” he has not alleged that he has a disability such that

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he cannot climb to an upper bunk. Nor has he alleged which Defendant(s) refused to assign him

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an upper bunk when requested. He simply indicates a fear of further injury, e.g., if he falls from

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an upper bunk. This claim is dismissed, with leave to amend.

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E.

Nevada Revised Statutes Sections (“NRS”) 209.131, 209.131(5), and 209.151

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Plaintiff invokes a statute giving the NDOC Director the duty of ensuring that employees

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with the responsibility to oversee the security and safety of offenders are correctional officers

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who have the powers of a peace officer. Plaintiff also invokes a statute concerning the NDOC

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Director’s duty to appoint deputy directors. Plaintiff makes no allegations implicating these

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1 Plaintiff invokes this statutory provision under it’s previous numbering, 42 U.S.C. § 13981.
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statutes. Nor do there appear to be any causes of action available for their alleged violation.

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These claims are dismissed, without leave to amend.

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F.

Amendment

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Plaintiff is given leave to amend to cure the deficiencies, as noted. An amended

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complaint supersedes the original, so it must be complete in itself. See Lacey v. Maricopa Cnty.,

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693 F.3d 896, 907 n.1 (9th Cir. 2012). Plaintiff must file the amended complaint on the

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approved prisoner civil rights form, and it must be titled “First Amended Complaint.” Plaintiff

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must file the amended complaint within twenty-eight (28) days from the date of this Order, or the

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Court may dismiss the entire action with prejudice without further notice.

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CONCLUSION

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IT IS HEREBY ORDERED that a decision on the Application to Proceed in Forma

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Pauperis (ECF No. 1) is DEFERRED.

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IT IS FURTHER ORDERED that the Clerk shall file the Complaint (ECF No. 1-2).

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IT IS FURTHER ORDERED that the Complaint is DISMISSED, with leave to amend in

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part, as noted herein, within twenty-eight (28) days of this Order.

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IT IS FURTHER ORDERED that the Clerk shall send Plaintiff the approved form for

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filing a § 1983 complaint, instructions, and a copy of the Complaint (ECF No. 1-2). Plaintiff

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must use the approved form and write the words “First Amended” above the words “Civil Rights

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Complaint” in the caption. The Court will screen the amended complaint in a separate screening

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order, which may take several months. If Plaintiff does not timely file an amended complaint,

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the Court may dismiss the entire action with prejudice without further notice.

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IT IS SO ORDERED.
Dated this 9th day of November, 2018.
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ROBERT C. JONES
United States District Judge
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