Myers v. Gillespie, Case No. 2:13-cv-0601-PMP-NJK
| Decision Date | 01 July 2013 |
| Docket Number | Case No. 2:13-cv-0601-PMP-NJK |
| Parties | MICHAEL MYERS, Plaintiff, v. SHERIFF DOUGLAS GILLESPIE, et at., Defendants. |
| Court | U.S. District Court — District of Nevada |
Plaintiff, who is a detainee at the Clark County Detention Center has submitted a Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 (ECF No. 1-1) and an application to proceed in forma pauperis. The Court finds that Plaintiff is unable to make an initial installment payment. However, pursuant to 28 U.S.C. § 1915, Plaintiff will be required to make monthly payments toward the full filing fee of one hundred fifty dollars ($350.00) when he has funds available.
The complaint is subject to the provisions of the Prisoner Litigation Reform Act as discussed below.
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Batistreri v. Pacifica Police Dep't, 901 F.2d. 696, 699 (9th Cir.1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act of 1995 (PLRA), a federal court must dismiss a prisoner's claim, "if the allegation of poverty is untrue," or if the action "is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d. 1103, 1106 (9th Cir. 1995).
Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappet v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all allegations of material fact stated in the complaint, and the court construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action isinsufficient. Id., see Papasan v. Attain, 478 U.S. 265, 286 (1986).
A reviewing court should "begin by identifying pleadings [allegations] that, because they are no more than mere conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 1950 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations." Id. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Id. "Determining whether a complaint states a plausible claim for relief [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the prisoner's claims lack an arguable basis either in law or in fact. This includes claims based on legal conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
In count one of the complaint, plaintiff claims he has been denied proper medical care after he slipped and suffered and injury "due to inadequate footwear" in violation of his Constitutional rights. However, the date of this occurrence was state to be in early November, 2010.
Section 1983 does not contain a specific statute of limitations. Wilson v. Garcia, 471 U.S. 261, 266 (1985); Vaughan v. Grijalva, 927 F.2d 476, 478 (9th Cir. 1991). The Supreme Court has determined the appropriate statute of limitations for all § 1983 claims, regardless of the facts or legal theory of the particular case, is the forum state's statute of limitations for personal injury actions. Perez v. Seevers, 869 F.2d 425, 426 (9th Cir.) (per curiam), cert. denied, 493 U.S. 860 (1989). The statuteof limitations in Nevada for personal injuries is two years. See Nev. Rev. Stat. § 11.190(4)(e).
Federal law governs the point at which a cause of action accrues and the statute of limitations begins to run. Vaughan, 927 F.2d at 480. Under federal law, a cause of action accrues when a plaintiff "knows or has reason to know of the injury which is the basis of the action." Norco Constr., Inc. v. King County, 801 F.2d 1143, 1145 (9th Cir. 1986); Cine v. Brusset, 661 F.2d 108, 110 (9th Cir. 1981).
Because the injury suffered by plaintiff and the allegations related to the denied medical care are things that plaintiff was aware of when they occurred, the limitations clock began to run in "early November 2010 and expired in early November 2012. This complaint was not submitted for filing until April 4, 2013. Complaint at 9. This claim must be dismissed as the statute of limitations on § 1983 claims has expired.
Next plaintiff alleges that he saw a doctor and was diagnosed with a hernia on October 17, 2011, as a result of his slip and fall in November 2010. He contends that the doctor advised him that hernia repair was "strictly cosmetic and that CCDC is not obligated to fix cosmetic issues." Plaintiff claims that he has been prescribed Ibuprofen for the pain that he suffers because of the hernia, but that the medication is inadequate. Plaintiff alleges these facts evidence a violation of his Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments.
A state actor's failure to provide a prisoner with proper medical care comes under the Eighth Amendment, which proscribes cruel and unusual punishment.1
The government has an obligation under the Eighth Amendment to provide medical care forthose whom it punishes by incarceration. See Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.1988) (citing Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976)). Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (quoting Hutchinson, 838 F.2d at 394).
Examples of serious medical needs include "[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain." McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir.1992). Plaintiff's hernia may be said to be such an injury in light of the continual pain he alleges he suffers.
However, because he has been treated with medication for the pain, he has not shown that the defendants were deliberately indifferent to his serious medical need, only that he disagrees with the treatment or that the doctor has been negligent in the treatment. See Estelle, 429 U.S. at 104, 97 S.Ct. 285); See Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004) (). This claim will be dismissed. However, plaintiff will be given an opportunity to amend the claim if he believes he can state additional facts which demonstrate that the condition, if not treated with surgery, will be life threatening.
In this count, plaintiff claims a violation of his Fourth, Fifth, Sixth, Eighth and Fourteenth Amendment rights when he was not allowed to be present at a court hearing in a civil matter (medical malpractice) he had filed. He alleges that, although he was transported to the courthouse for the mandatory hearing, he was left in a holding cell while the guard made a phone call to an unknown party. Plaintiff was not taken into the hearing and was returned to CCDC. He alleges that he later...
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