Opinion
2:22-cv-01725-APG-NJK
12-04-2022
Barry Allen Gabelman, Plaintiff v. Nye County Sheriff's Office, et al., Defendants
ORDER SCREENING COMPLAINT AND GRANTING IFP APPLICATION
(ECF NO. 8)
Plaintiff Barry Gabelman, who is in the custody of the Nye County Sheriff's Office at the Nye County Detention Center, has submitted a civil-rights complaint under 42 U.S.C. § 1983 and filed an application to proceed in forma pauperis. Based on the financial information provided, I find that Gabelman cannot prepay the filing fee in this action. I therefore grant Gabelman's application to proceed in forma pauperis, and I now screen his civil-rights complaint under 28 U.S.C. § 1915A.
ECF Nos. 1-1, 8.
I. SCREENING STANDARD
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity. In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous or malicious, or that fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. All or part of the complaint may be dismissed sua sponte if the prisoner's claims lack an arguable basis in law or fact. This includes claims based on legal conclusions that are untenable, like 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 or fantastic or delusional scenarios.
See 28 U.S.C. § 1915A(a).
See id. at § 1915A(b)(1)(2).
See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
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. In making this determination, the court takes all allegations of material fact as true and construes them in the light most favorable to the plaintiff. Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers, but a plaintiff must provide more than mere labels and conclusions. “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” “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.”
See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).
See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996).
Hughes v. Rowe, 449 U.S. 5, 9 (1980); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (recognizing that pro se pleadings must be liberally construed).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Id.
II. SCREENING OF COMPLAINT
Gabelman sues six defendants for events that allegedly occurred while he was detained at the Nye County Detention Center (Nye Detention). Gabelman sues the Nye County Sheriff's Office, the Nye County Jail, Lieutenant Deputy Sheriff Gray, Sergeant Deputy Sheriff Redditt, Sergeant Deputy Sheriff Theodore Eisenloffel, and Sergeant Deputy Sheriff Cleveland. Gabelman brings three claims and seeks monetary relief. Gabelman alleges the following.
A. Factual allegations
Gabelman was transferred from Nevada Southern Detention Center (Nevada Detention) to Nye Detention “to get away from [Nevada Detention] because of the facility staff and corrections officers that were trying to have [him] killed for holding them ‘accountable' for their corruption and greed.” In February 2022, Nye Detention transferred Gabelman back to Nevada Detention to attend his trial on February 7. Nye Detention jail officials knew that Gabelman had been transferred to Nye Detention because of threats against his life made by Nevada Detention jail officials, but transferred him anyway, stating that Nevada Detention was the only facility that “did transports to Las Vegas.” But Nye Detention jail officials told Gabelman that they would transport him to his sentencing hearing on October 19, 2022.
ECF No. 1-1 at 3.
Id. at 4.
Gabelman wasn't transferred back to Nye Detention until a month after his trial was finished. Gabelman asked Lieutenant Gray why it took so long to transfer him back to Nye Detention. Gray responded, “I left you over there for that month because you pissed me off.”
Id.
On September 13, 2022, Sergeant Redditt did a “pod ‘shakedown'” in which he required all the inmates in Gabelman's pod to go to the yard while the officers searched their cells. When Gabelman returned to his cell, he noticed that his legal papers and other items had been “carelessly ‘thrown'” about the top bunk and a bowl of water he'd left there had been “deliberately” spilled on two “very important handwritten legal papers.” Also, three-quarters of his books had been removed. Inmates were not required to leave the pod during other shakedowns that Gabelman experienced at Nye Detention, nor were his books taken in any prior search. And Gabelman's “cellmate's property was not touched, searched, or ‘thrown' around[.]”
Id. at 5.
Gabelman suspects that he was “targeted” because two days earlier Redditt said that Gabelman recently got him into trouble with his lieutenant. When Gabelman asked why his books had been taken, Redditt quoted a “rule” from his former employer-Nevada Detention. But that rule didn't apply at Nye Detention.
Id.
On September 20, 2022, Sergeant Cleveland brought disciplinary charges against Gabelman for “‘supposed' insolence, insubordination, and refusing to obey a staff member's orders for rightfully using the grievance system and exercising [his] First Amendment rights, by accusing the Nye County Sheriff's Office of corruption and greed[.]” During the hearing, Cleveland made it clear the charges were “personal” to him. On October 6, 2022, Sergeant Eisenloffel tried to bring disciplinary charges against Gabelman for similar reasons. The hearing for Eisenloffel's charges was scheduled for October 11, 2022. The charges were brought because Gabelman was using the grievance system to accuse the Nye County Sheriff's Office of “corruption and tampering with federal legal mail[.]”
Id. at 6.
Based on these allegations, Gabelman contends that defendants retaliated against him in violation of “1997(D).” I liberally construe the complaint as alleging claims for retaliation in violation of the First Amendment.
B. Gabelman names defendants that cannot be sued.
Gabelman cannot sue the Nye County Jail. The statute that allows inmates like Gabelman to bring civil-rights actions like this one-42 U.S.C. § 1983-authorizes suits against only a “person” acting under the color of state law. As a result, courts routinely hold that jails and prisons are not persons who can be sued under § 1983. Because the Nye County Jail-also called the Nye County Detention Center-is a building, not a person who can act or be sued, I dismiss that defendant from this action with prejudice because amendment would be futile.
See, e.g., Allison v. California Adult Authority, 419F.2d 822, 823 (9th Cir. 1969) (California Adult Authority and San Quentin prison not “persons” subject to suit under § 1983).
Gabelman also cannot sue the Nye County Sheriff's Office. State law determines a governmental entity's capacity to be sued in federal court. Under Nevada law, “[i]n the absence of statutory authorization, a department of the municipal government may not, in the departmental name, sue or be sued.” Although NRS 41.031(2) authorizes suit against “any political subdivision of the State,” that authorization does not extend to departments of a municipal government. Because the Nye County Sheriff's Department is a department of Nye County, it lacks the capacity to be sued. I therefore dismiss with prejudice the Nye County Sheriff's Department from this action because amendment would be futile.
See Fed.R.Civ.P. 17(b); Streit v. Cnty. of Los Angeles, 236 F.3d 552, 565 (9th Cir. 2001).
Wayment v. Holmes, 912 P.2d 816, 819 (Nev. 1996) (quoting 64 C.J.S. Municipal Corporations § 2195 (1950)).
See Schneider v. Elko Cnty. Sheriff's Dep't, 17 F.Supp.2d 1162, 1164-65 (D. Nev. 1998) (noting that “[a] Nevada county falls within this definition, but not a sheriff's department”).
C. First Amendment-retaliation
Inmates have a First Amendment right to file prison grievances and pursue civil-rights litigation in the courts, “and to be free from retaliation for doing so.” A retaliation claim in the jail context has five elements. “First, the plaintiff must allege that the retaliated-against conduct is protected.” Filing or submitting a grievance, complaint, or lawsuit about jail conditions or alleged constitutional violations is protected conduct. The form that an inmate's complaint takes-“even if verbal”-“is of no constitutional significance, and threats to sue fall within the purview of the constitutionally protected right to file grievances.”
Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012); Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004).
Watison, 668 F.3d at 1114.
Id.
Entler v. Gregorie, 872 F.3d 1031, 1039 (9th Cir. 2017).
Id.
Second, the plaintiff must allege that “the defendant took adverse action against [him].”“‘The mere threat of harm can be an adverse action.'” The third factor requires the plaintiff to “allege a causal connection between the adverse action and the protected conduct.”
Watison, 668 F.3d at 1114.
Id. (brackets and emphasis omitted) (quoting Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009)).
Id.
Allegations “of a chronology of events from which retaliation can be inferred is sufficient” at the screening stage.
Id.
“Fourth, the plaintiff must allege that the ‘official's acts would chill or silence a person of ordinary firmness from future First Amendment activities.'” “A plaintiff who fails to allege a chilling effect may still state a claim if he alleges [that] he suffered some other harm that is more than minimal.” The fact “[t]hat the retaliatory conduct did not chill the plaintiff from suing the alleged retaliator does not defeat the retaliation claim” at the pleading stage.
Id. (quoting Robinson, 408 F.3d at 568).
Id. (brackets and quotation marks omitted) (quoting Brodheim, 584 F.3d at 1269 and Robinson, 408 F.3d at 568 n.11).
Id.
And the fifth factor requires the plaintiff to allege “‘that the prison authorities' retaliatory action did not advance legitimate goals of the correctional institution.'” A plaintiff can sufficiently plead “this element by alleging, in addition to a retaliatory motive, that the defendant's actions were arbitrary or capricious, or that they were unnecessary to the maintenance of order in the institution.”
Id. (quoting Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)).
Id. (internal quotation omitted).
Based on the allegations, at some point Gabelman was transferred to Nye Detention because unidentified jail officials at Nevada Detention had threatened to kill him as he was holding them accountable for their corruption and greed. In February 2022, Gabelman was transferred back to Nevada Detention for his criminal trial. Lieutenant Gray did not have Gabelman transferred back to Nye Detention until a month after his trial had ended. Gray stated he did this because Gabelman “pissed [him] off.” I do not find that these allegations are enough to state a colorable claim that Gray retaliated against Gabelman. There is no allegation Gabelman engaged in protected conduct that was the reason Gray was angry at Gabelman and thus left him at Nevada Detention for an extra month. Gabelman also fails to allege that Gray's adverse action would chill the First Amendment activity of an ordinary person, or that Gabelman suffered harm that was more than minimal by not being transferred to Nye Detention earlier.
These allegations do not state a colorable failure-to-protect claim under the Fourteenth Amendment's Due Process Clause. See Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016) (stating elements of pretrial detainee's failure-to-protect claim).
Several months later during a cell search, Sergeant Redditt scattered Gabelman's belongings across the top bunk, spilled water on two of Gabelman's handwritten legal letters, and confiscated three-quarters of Gabelman's books. Redditt said he did this because Gabelman got him into trouble with his lieutenant. These allegations fail to state a colorable claim that Redditt retaliated against Gabelman. There is no allegation that Gabelman engaged in protected conduct. Gabelman, in fact, does not allege what he did or said to cause Reddit to get into trouble with his lieutenant.
About ten days after the cell search, Sergeant Cleveland brought disciplinary charges against Gabelman for his “supposed” insolence, insubordination, and failure to obey an order. Cleveland showed during the disciplinary hearing that the matter was “personal” to him. About 16 days later, Sergeant Eisenloffel brought disciplinary charges against Gabelman for some of the same reasons cited in Cleveland's charges. Gabelman alleges that Cleveland and Eisenloffel “retaliated” against him because he used the grievance system to accuse the Nye County Sheriff's Office of corruption and tampering with legal mail.
These allegations fall short of stating a colorable claim that Cleveland or Eisenloffel retaliated against Gabelman. Gabelman does not plead facts to causally connect the grievance he filed about corruption and tampering in the sheriff's office to Cleveland or Eisenloffel. And the few facts he pleads do not state a chronology of events from which I can infer retaliation. For example, Gabelman does not allege that Cleveland or Eisenloffel brought him up on false disciplinary charges shortly after he filed the grievance about corruption and greed in the sheriff's office, Cleveland or Eisenloffel knew or should have known about that grievance, or either defendant was a subject of the grievance.
Gabelman has failed to state a colorable retaliation claim against any defendant. But it does not yet appear that he cannot state any set of facts upon which relief could be granted. So I dismiss Gabelman's First Amendment retaliation claims without prejudice and with leave to amend.
III. LEAVE TO AMEND
Because it appears that Gabelman could cure the deficiencies of his First Amendment retaliation claims, I grant him leave to amend to attempt to replead them. This means Gabelman has leave to plead true facts to show that he engaged in protected conduct and that the defendants acted adversely against him because of that conduct. If Gabelman chooses to file an amended complaint, he is advised that an amended complaint replaces the original complaint, so the amended complaint must be complete in itself. This means Gabelman's amended complaint must contain all claims, defendants, and factual allegations that he wishes to pursue in this lawsuit.
See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege them in a subsequent amended complaint to preserve them for appeal).
Gabelman should file the amended complaint on this court's approved prisoner-civil-rights form, and it must be entitled “First Amended Complaint.” Gabelman must follow the instructions on the form. He need not and should not allege very many facts in the “nature of the case” section of the form. Rather, in each claim, he should allege facts sufficient to show what each defendant did to violate his civil rights.
IV. CONCLUSION
I order that Gabelman's application to proceed in forma pauperis (ECF No. 8) is granted. In forma pauperis status doesn't relieve Gabelman of his obligation to pay the full $350 filing fee under 28 U.S.C. § 1915; it just means that he can do it in installments. Gabelman is permitted to maintain this action to conclusion without the prepayment of any additional fees or costs or the giving of security, and he will not be required to pay an initial installment of the filing fee. But the full $350 filing fee will remain due and owing even if this case is later dismissed.
To ensure that Gabelman pays the full filing fee, I further order that the Nye County Sheriff's Office must pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposits to the account of Barry Gabelman, #2043216 (in months that the account exceeds $10) until the full $350 filing fee has been paid for this action.
I further order that the First Amendment retaliation claims are dismissed without prejudice and with leave to amend.
I further order that defendants Nye County Jail and Nye County Sheriff's Office are dismissed with prejudice.
I further order that defendants Lt. Gray, Sgt. Redditt, Theodore Eisenloffel, and Sgt. Cleveland are dismissed without prejudice.
I further order that if Gabelman chooses to file an amended complaint, he should use the approved form and he will write the words “First Amended” above the words “Civil Rights Complaint” or mark the box with those words in the caption. The court will screen the amended complaint in a separate screening order and the screening process will take several months. If Gabelman chooses not to file an amended complaint, this action will be subject to dismissal without prejudice for failure to state a claim.
I further order that Gabelman has until January 9, 2023 to file an amended complaint.
I further order the Clerk of the Court to (1) file the complaint (ECF No. 1-1); (2) send a copy of this order to the Finance Division of the Clerk's office and to the attention of the Chief of Inmate Services for the Nye County Detention Center, 1521 E. Siri Lane, Pahrump, Nevada 89060; and (3) send plaintiff Barry Gabelman the approved form for filing a 42 U.S.C. § 1983 complaint, instructions for the same, and a copy of his complaint (ECF No. 1-1).