Lavin v. Scarlett

Filing 6

ORDER that a decision on the IFP Application (ECF No. 1 ) is DEFERRED; Clerk directed to file the Complaint (ECF No. 1 -1) and send Plaintiff a courtesy copy (Mailed to P on 11/7/2018); Count I MAY PROCEED against Defendant Scarlett; Counts II and III are DISMISSED, with leave to amend by 12/5/2018; Clerk directed to send Plaintiff the approved form for filing a § 1983 complaint, instructions, and a copy of the Complaint (ECF No. 1 -1) (Mailed to P on 11/7/2018); a separate screening order will be done by the Court if an amended complaint is filed; if Plaintiff does not timely file an amended complaint, the Court may dismiss with prejudice without further notice. Signed by Judge Robert C. Jones on 11/7/2018. (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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***
CODY LAVIN,

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Plaintiff,

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v.

3:17-cv-00731-RCJ-CBC

SCARLETT,

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ORDER
Defendant.

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Plaintiff Cody Lavin, a prisoner in the custody of the Nevada Department of Corrections,

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brings this pro se civil rights complaint under 42 U.S.C. § 1983 and has filed an application to

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proceed in forma pauperis for prisoners. (ECF No. 1, 1-1.) The matter of the filing fee will be

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temporarily deferred. Applying the requirements under 28 U.S.C. § 1915A, Plaintiff states

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colorable Eighth Amendment excessive force and state tort law claims against Defendant Scarlett.

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However, Plaintiff’s due process claim is dismissed without prejudice.

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I.

SCREENING STANDARD

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

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

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

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

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

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

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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

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Rule 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 grounds

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

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12(b)(6) tests the complaint’s sufficiency, N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581

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(9th Cir. 1983), and dismissal is appropriate only when the complaint does not give the defendant

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fair notice of a legally cognizable claim and the grounds on which it rests, Bell Atl. Corp. v.

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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 he

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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 complaint

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may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896

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

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are alleged in a complaint and whose authenticity no party questions, but which are not physically

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attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without

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converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d

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449, 454 (9th Cir. 1994). Also, under Federal Rule of Evidence 201, a court may take judicial

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notice of “matters of public record” if not “subject to reasonable dispute.” United States v.

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Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011). Otherwise, if the district court considers

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materials outside of the pleadings, the motion to dismiss is converted into a motion for summary

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judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

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To state a claim under § 1983, a plaintiff must allege (1) violation of a right secured by the

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

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

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II.

ANALYSIS

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In the Complaint, Plaintiff alleges that he was the victim of excessive force while he was

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incarcerated at Northern Nevada Correctional Center (“NNCC”). (ECF No. 1-1 at 1, 5.) In

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connection with his claims, Plaintiff names, as Defendant, Scarlett (NNCC Correctional Officer).

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(Id. at 2.) Plaintiff has commenced this civil rights action asserting federal constitutional claims

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for excessive force (Count I) and due process (Count III), and a state tort law claim for intentional

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infliction of emotional distress (“IIED”) (Count II). (Id. at 5-7.) Plaintiff seeks monetary damages

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as well as injunctive relief. (Id. at 10.)

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Plaintiff alleges that on June 7, 2017, he was escorted from the infirmary back to his cell

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in administrative segregation by Officer Scarlett. (ECF No. 1-1 at 3.) As Plaintiff entered the cell,

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Officer Scarlett shut the cell door and ordered Plaintiff to place his hands outside the food hatch

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so that he could remove Plaintiff’s handcuffs. (Id. at 4.) Plaintiff did so, and Scarlett, without

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justification, grabbed Plaintiff’s left wrist and began twisting and bending Plaintiff’s wrist, causing

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a scar, bruising, and extreme pain. (Id.) As a result, Plaintiff was taken to the infirmary for medical

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attention and given pain medication. (Id.)

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The Court finds it helpful to briefly summarize the three counts. In Count I, Scarlett

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subjected Plaintiff to excessive force on June 7, 2017 by twisting and bending his left wrist, in

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violation of the Eighth Amendment. (Id. at 5.) In Count II, Scarlett subjected Plaintiff to IIED by

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using excessive and unnecessary force, in violation of state tort law. (Id. at 6.) In Count III, Scarlett

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violated Plaintiff’s Fourteenth Amendment right to due process by causing him pain, suffering,

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physical injury, and emotional distress. (Id. at 7.)

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A.

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The Court finds that Plaintiff states a colorable Eighth Amendment excessive force claim

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against Scarlett. When a prison official stands accused of using excessive physical force in

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violation of the cruel and unusual punishment clause of the Eighth Amendment, the question turns

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on whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously

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and sadistically for the purpose of causing harm. See Hudson v. McMillian, 503 U.S. 1, 7 (1992)

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(citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining whether the use of force

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was wanton and unnecessary, it is proper to consider factors such as the need for application of

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force, the relationship between the need and the amount of force used, the threat reasonably

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perceived by the responsible officials, and any efforts made to temper the severity of the forceful

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response. Hudson, 503 U.S. at 7. The extent of a prisoner's injury is also a factor that may suggest

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whether the use of force could plausibly have been thought necessary in a particular situation. Id.

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Although the absence of serious injury is relevant to the Eighth Amendment inquiry, it is not

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determinative. Id.; see Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010). That is, use of excessive

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physical force against a prisoner may constitute cruel and unusual punishment even though the

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prisoner does not suffer serious injury. Id. at 9. The Eighth Amendment's prohibition on cruel and

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unusual punishments "necessarily excludes from constitutional recognition de minimis uses of

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physical force, provided that the use of force is not of a sort repugnant to the conscience of

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mankind." Id. at 9-10; see Wilkins, 559 U.S. at 37-38.

Count I: Excessive Force – Scarlett

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Here, Plaintiff alleges that Scarlett, without justification, grabbed his left wrist and began

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twisting and bending his wrist, causing a scar, bruising, and extreme pain. (ECF No. 1-1 at 4.)

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Because it appears that Scarlett applied force maliciously and sadistically for the purpose of

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causing Plaintiff harm, the Court finds that Count I will proceed against Defendant Scarlett.

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B.

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Plaintiff’s IIED claim is based on the same conduct that gives rise to his federal

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constitutional claim for excessive force. For screening purposes, the Court will let this claim

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proceed past screening based on supplemental jurisdiction. See 28 U.S.C. § 1367(a) (stating that

Count II: IIED – Scarlett

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“in any civil action of which the district courts have original jurisdiction, the district courts shall

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have supplemental jurisdiction over all other claims that are so related to claims in the action within

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such original jurisdiction that they form part of the same case or controversy”).

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The Court looks to Nevada law in assessing whether Plaintiff has alleged sufficient facts

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to state his claim for IIED. Under Nevada law, the elements of IIED are: “(1) extreme and

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outrageous conduct on the part of the defendant; (2) intent to cause emotional distress or reckless

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disregard for causing emotional distress; (3) that the plaintiff actually suffered extreme or severe

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emotional distress; and (4) causation.” Miller v. Jones, 970 P.2d 571, 577 (Nev. 1998); see also

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Barmettler v. Reno Air, Inc., 956 P.2d 1382, 1386 (Nev. 1998). For conduct to be extreme and

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outrageous, it must rise to a level “outside all possible bounds of decency” and be “regarded as

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utterly intolerable in a civilized community.” Dowers v. Nationstar Mortg., LLC, 852 F.3d 964,

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971 (9th Cir. 2017). “Liability for emotional distress generally does not extend to mere insults,

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indignities, threats, annoyances, petty oppressions, or other trivialities.” Burns v. Mayer, 175 F.

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Supp. 2d 1259, 1268 (D. Nev. 2001). A plaintiff must set forth “objectively verifiable indicia” to

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establish that the plaintiff “actually suffered extreme or severe emotional distress.” Miller, 970

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P.2d at 577.

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Here, Plaintiff alleges that Scarlett’s conduct was excessive and unnecessary, causing

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extreme pain, bruising, and physical injury. (ECF No 1-1 at 6.) Plaintiff alleges no facts indicating

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extreme or severe emotional distress, however. The claim is dismissed, with leave to amend to

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state a claim for IIED (or battery).

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C.

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In Count III, Plaintiff generally alleges that his right due process under the Fourteenth

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Amendment was violated. (ECF No. 1-1 at 7.) The Court finds that Plaintiff fails to state a

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colorable due process claim. Plaintiff states no facts in the Complaint that would give rise to a

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Fourteenth Amendment due process violation. Count III is therefore dismissed, with leave to

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amend.

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Count III: Due Process – Scarlett

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D.

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As noted, Plaintiff may amend Counts II and III if he wishes to pursue those claims. An

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amended complaint supersedes (replaces) the original Complaint, so an amended complaint must

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be complete in itself. Lacey v. Maricopa Cnty., 693 F.3d 896, 907 n.1 (9th Cir. 2012); Hal Roach

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Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). Plaintiff must

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file the amended complaint on this Court’s approved prisoner civil rights form, and it must be

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entitled “First Amended Complaint.” Plaintiff must file the amended complaint within twenty-

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eight (28) days from the date of this Order, or the case will proceed on Count I against Scarlett,

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and the other claims may be dismissed with prejudice without further notice.

Amendment

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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.
IT IS FURTHER ORDERED that the Clerk shall file the Complaint (ECF No. 1-1) and
send Plaintiff a courtesy copy.

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IT IS FURTHER ORDERED that Count I MAY PROCEED against Defendant Scarlett.

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IT IS FURTHER ORDERED that Counts II and III are DISMISSED, with leave to

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amend 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. 1-1). 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 with prejudice without further notice.

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IT IS SO ORDERED.
Dated this 7th day of November, 2018.
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ROBERT C. JONES
United States District Judge
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