Miller v. Ashcraft et al

Filing 6

ORDER - It is therefore ordered that Miller's application to proceed in forma pauperis (ECF No. 1 ) without having to prepay the full filing fee is granted. The Clerk of Court will send a copy of this order to the Finance Division of th e Clerk's Office. The Clerk of Court will further send a copy of this order to the attention of Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702. (Emailed Order to Finance; Mailed to NDOC on 9/24/2024). It is further ordered that the Clerk of Court file the Complaint (ECF No. 1 -1) and send Miller a courtesy copy. It is further ordered that the Complaint is dismissed in its entirety with prejudice, as amendment would be f utile, for failure to state a claim. The Clerk of Court is directed to enter judgment accordingly and close this case. This Court certifies that any in forma pauperis appeal from this order would not be taken "in good faith" pursuant to 28 U.S.C. § 1915(a)(3). Signed by Chief Judge Miranda M. Du on 9/24/2024. (For Distribution by law library.) (Attachments: # 1 Complaint for Plaintiff)(Copies have been distributed pursuant to the NEF - DLS)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

MICHAEL MILLER,

Case No. 3:24-cv-00062-MMD-CSD
Plaintiff,

7

ORDER

v.
8
ASHCRAFT, et al.,
9
Defendants.
10
11

I.

SUMMARY

12

Pro se Plaintiff Michael Miller, who is incarcerated in the custody of the Nevada

13

Department of Corrections (“NDOC”), has submitted a civil rights complaint under 42

14

U.S.C. § 1983. (ECF No. 1-1.) He also filed an application to proceed in forma pauperis

15

(“IFP Application”). (ECF No. 1.) The Court grants the IFP Application and screens Miller’s

16

Complaint under 28 U.S.C. § 1915A.

17

II.

IFP APPLICATION

18

To start, the Court grants Miller’s IFP Application. (ECF No. 1.) Based on the

19

information he provided regarding his financial status, the Court finds that Miller is not

20

able to pay an initial installment payment toward the full filing fee pursuant to 28 U.S.C. §

21

1915. Miller will, however, be required to make monthly payments toward the full $350.00

22

filing fee when he has funds available.

23

III.

SCREENING STANDARD

24

Federal courts must conduct a preliminary screening in any case in which an

25

incarcerated person seeks redress from a governmental entity or officer or employee of

26

a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify

27

any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

28

claim upon which relief may be granted, or seek monetary relief from a defendant who is

1

immune from such relief. See id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must

2

be liberally construed. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.

3

1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

4

elements: (1) the violation of a right secured by the Constitution or laws of the United

5

States; and (2) that the alleged violation was committed by a person acting under color

6

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

7

In addition to the screening requirements under § 1915A, under the Prison

8

Litigation Reform Act, a federal court must dismiss an incarcerated person’s claim if “the

9

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

10

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

11

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

12

to state a claim upon which relief can be granted is provided for in Federal Rule of Civil

13

Procedure 12(b)(6), and the Court applies the same standard under § 1915 when

14

reviewing the adequacy of a complaint or an amended complaint. When a court dismisses

15

a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint

16

with directions as to curing its deficiencies, unless it is clear from the face of the complaint

17

that the deficiencies could not be cured by amendment. See Cato v. United States, 70

18

F.3d 1103, 1106 (9th Cir. 1995).

19

Review under Rule 12(b)(6) is essentially a ruling on a question of law. See

20

Chappel v. Lab. Corp. of Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to

21

state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in

22

support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d

23

756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all

24

allegations of material fact stated in the complaint, and the Court construes them in the

25

light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th

26

Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than

27

formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While

28

the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff
2

1

must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly,

2

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

3

insufficient. See id.

4

Additionally, a reviewing court should “begin by identifying pleadings [allegations]

5

that, because they are no more than mere conclusions, are not entitled to the assumption

6

of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide

7

the framework of a complaint, they must be supported with factual allegations.” Id. “When

8

there are well-pleaded factual allegations, a court should assume their veracity and then

9

determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining

10

whether a complaint states a plausible claim for relief . . . [is] a context-specific task that

11

requires the reviewing court to draw on its judicial experience and common sense.” Id.

12

Finally, all or part of a complaint filed by an incarcerated person may be dismissed

13

sua sponte if that person’s claims lack an arguable basis either in law or in fact. This

14

includes claims based on legal conclusions that are untenable (e.g., claims against

15

defendants who are immune from suit or claims of infringement of a legal interest which

16

clearly does not exist), as well as claims based on fanciful factual allegations (e.g.,

17

fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989);

18

see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

19

IV.

DISCUSSION

20

In his Complaint, Miller sues six Defendants for events that took place while he

21

was incarcerated at Northern Nevada Correctional Center. (ECF No. 1-1 at 2.) Miller

22

names as Defendants Kristy Fonoimoana, Lt. Ashcraft, Warden N. Childers, correctional

23

officer Ralston, and Does senior cert officer and shift command sergeant.1 He brings one

24

claim and seeks monetary damages.

25
26
27
28

1The

use of “Doe” to identify a defendant is not favored. See Gillespie v. Civiletti,
629 F.2d 637, 642 (9th Cir. 1980). But flexibility is allowed in some cases where the
identity of the parties will not be known prior to filing a complaint but can subsequently be
determined through discovery. See id. If the identity of any of the Doe Defendants were
3

1

Miller alleges the following. On June 14, 2023, a physical altercation occurred in

2

his dorm between another inmate and officers that resulted in a taser being deployed.

3

Afterwards, all prisoners were ordered out of the dorm so that the officers could clear the

4

scene for safety and security. About an hour later the inmates were allowed to return to

5

the dorm. Miller did not realize that an officer had misfired his weapon, and the projectile

6

had landed in and remained in his bed. Officers failed to follow policy by not recovering

7

all the projectiles. Miller has sensitive skin due to past burn injuries to most of his body,

8

and while he was sleeping the projectile punctured his skin.

9

Officer Ralston knew that one of his projectiles did not hit the intended target, and

10

he knew that it had not been accounted for. Lt. Ashcraft was fully aware that all the

11

projectiles had not been recovered, but he deliberately and maliciously caused Miller

12

harm by stating that the dorm was safe. Doe senior cert officer worked with his co-workers

13

to conceal the fact that the dorm was not safe and secure. He deliberately violated

14

procedure governing whenever an electronic control weapon is used. Doe shift command

15

sergeant knew all projectiles had not been recovered. Warden Childers responded to

16

Miller’s grievance about the incident by stating only, “you were collateral damage.” (Id. at

17

3.) Miller pursued a second level grievance on August 17, 2023; to date he has received

18

no response.

19

Based on these allegations, Miller asserts an Eighth Amendment claim for

20

deliberate indifference to inmates’ safety against Defendants Ashcraft, Childers, Ralston,

21

Doe senior cert officer, and Doe shift command sergeant (Claim 1).

22

The Constitution does not mandate comfortable prisons, but neither does it permit

23

inhumane ones. See Rhodes v. Chapman, 452 U.S. 337, 349 (1981); Farmer v. Brennan,

24

511 U.S. 825, 832 (1994). The “treatment a prisoner receives in prison and the conditions

25

under which he is confined are subject to scrutiny under the Eighth Amendment.” Helling

26
27
28

to come to light during discovery, Plaintiff would be able to move to substitute the true
names of Doe Defendant(s) to assert claims against the Doe Defendant(s) at that time.
4

1

v. McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment imposes duties on prison

2

officials to take reasonable measures to guarantee the safety of inmates and to ensure

3

that inmates receive adequate food, clothing, shelter, and medical care. See Farmer, 511

4

U.S. at 832.

5

To establish violations of these duties, the prisoner must establish that prison

6

officials were deliberately indifferent to serious threats to the inmate’s safety. See id. at

7

834. To demonstrate that a prison official was deliberately indifferent to a serious threat

8

to the inmate’s safety, the prisoner must show that “the official [knew] of and disregard[ed]

9

an excessive risk to inmate . . . safety; the official must both be aware of facts from which

10

the inference could be drawn that a substantial risk of serious harm exists, and [the

11

official] must also draw the inference.” Id. at 837. Prison officials may not escape liability

12

because they cannot, or did not, identify the specific source of the risk; the serious threat

13

can be one to which all prisoners are exposed. See id. at 843. Additionally, “prison officials

14

who actually knew of a substantial risk to inmate health or safety may be found free from

15

liability if they responded reasonably to the risk, even if the harm ultimately was not

16

averted.” Id. at 844; see also Hallinan v. Scarantino, 466 F. Supp. 3d 587, 606 (E.D.N.C.

17

2020) (finding that the “fact that respondents’ response may prove inadequate to prevent

18

the spread of COVID-19 does not establish they were deliberately indifferent”).

19

Here, Miller alleges that several Defendants knew that a taser projectile was

20

unaccounted for after they swept the dorm post-incident. He offers only conclusory

21

allegations that Defendants maliciously and knowingly told inmates the scene was safe.

22

But he has not alleged that a single projectile posed a serious risk to inmate health or

23

safety. Nor does Miller allege a serious injury. He explains that he has significant burn

24

injuries—apparently due to a childhood incident—and he states that he rolled over and

25

the projectile pierced his skin. His allegations do not rise to a colorable claim of a

26
27
28
5

1

constitutional violation. Accordingly, the Court dismisses Miller’s Complaint with prejudice

2

and without leave to amend as amendment would be futile.2

3

V.

CONCLUSION

4

It is therefore ordered that Miller’s application to proceed in forma pauperis (ECF

5

No. 1) without having to prepay the full filing fee is granted. Miller will not be required to

6

pay an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to

7

28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act.

8

It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the Prison

9

Litigation Reform Act, the Nevada Department of Corrections will forward payments from

10

the account of Michael Miller, #1249108, to the Clerk of the United States District Court,

11

District of Nevada, 20% of the preceding month’s deposits (in months that the account

12

exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk of

13

Court will send a copy of this order to the Finance Division of the Clerk’s Office. The Clerk

14

of Court will further send a copy of this order to the attention of Chief of Inmate Services

15

for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702.

16

It is further ordered that, even though this action is dismissed, or is otherwise

17

unsuccessful, the full filing fee will still be due, under 28 U.S.C. §1915, as amended by

18

the Prison Litigation Reform Act.
It is further ordered that the Clerk of Court file the Complaint (ECF No. 1-1) and

19
20

send Miller a courtesy copy.
It is further ordered that the Complaint is dismissed in its entirety with prejudice, as

21
22

amendment would be futile, for failure to state a claim.

23

///

24

///

25

///

26

///

27
28

2The

Court also notes that while Miller lists Kristy Fonoimoana as a Defendant, he
sets forth no allegations against that Defendant.
6

1

The Clerk of Court is directed to enter judgment accordingly and close this case.

2

This Court certifies that any in forma pauperis appeal from this order would not be taken

3

“in good faith” pursuant to 28 U.S.C. § 1915(a)(3).

4

DATED THIS 24th Day of September 2024.

5
6

___
MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7