Welch v. Dzurenda ( 2023 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 KENTRELL D. WELCH, Case No. 3:23-cv-00224-ART-CLB 6 Plaintiff, ORDER v. 7 JAMES DZURENDA, et al., 8 Defendants. 9 10 Plaintiff, who is incarcerated in the custody of the Nevada Department of 11 Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 12 U.S.C. § 1983, and has filed an application to proceed in forma pauperis. (ECF 13 Nos. 1, 1-1). The matter of the filing fee will be temporarily deferred. The Court 14 now screens Plaintiff’s civil rights complaint under 28 U.S.C. § 1915A. 15 SCREENING STANDARD 16 Federal courts must conduct a preliminary screening in any case in which 17 a prisoner seeks redress from a governmental entity or officer or employee of a 18 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must 19 identify any cognizable claims and dismiss any claims that are frivolous, 20 malicious, fail to state a claim upon which relief may be granted or seek monetary 21 relief from a defendant who is immune from such relief. See 28 U.S.C. 22 § 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. 23 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a 24 claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) 25 the violation of a right secured by the Constitution or laws of the United States, 26 and (2) that the alleged violation was committed by a person acting under color 27 of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 28 In addition to the screening requirements under § 1915A, pursuant to the 1 Prison Litigation Reform Act (PLRA), a federal court must dismiss a prisoner’s 2 claim, if “the allegation of poverty is untrue,” or if the action “is frivolous or 3 malicious, fails to state a claim on which relief may be granted, or seeks monetary 4 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 5 Dismissal of a complaint for failure to state a claim upon which relief can be 6 granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court 7 applies the same standard under § 1915 when reviewing the adequacy of a 8 complaint or an amended complaint. When a court dismisses a complaint under 9 § 1915(e), the plaintiff should be given leave to amend the complaint with 10 directions as to curing its deficiencies, unless it is clear from the face of the 11 complaint that the deficiencies could not be cured by amendment. See Cato v. 12 United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 13 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 14 Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal 15 for failure to state a claim is proper only if it is clear that the plaintiff cannot 16 prove any set of facts in support of the claim that would entitle him or her to 17 relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this 18 determination, the court takes as true all allegations of material fact stated in the 19 complaint, and the court construes them in the light most favorable to the 20 plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 21 Allegations of a pro se complainant are held to less stringent standards than 22 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). 23 While the standard under Rule 12(b)(6) does not require detailed factual 24 allegations, a plaintiff must provide more than mere labels and conclusions. Bell 25 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the 26 elements of a cause of action is insufficient. Id. 27 Additionally, a reviewing court should “begin by identifying pleadings 28 [allegations] that, because they are no more than mere conclusions, are not 1 entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 2 “While legal conclusions can provide the framework of a complaint, they must be 3 supported with factual allegations.” Id. “When there are well-pleaded factual 4 allegations, a court should assume their veracity and then determine whether 5 they plausibly give rise to an entitlement to relief.” Id. “Determining whether a 6 complaint states a plausible claim for relief . . . [is] a context-specific task that 7 requires the reviewing court to draw on its judicial experience and common 8 sense.” Id. 9 Finally, all or part of a complaint filed by a prisoner may therefore be 10 dismissed sua sponte if the prisoner’s claims lack an arguable basis either in law 11 or in fact. This includes claims based on legal conclusions that are untenable 12 (e.g., claims against defendants who are immune from suit or claims of 13 infringement of a legal interest which clearly does not exist), as well as claims 14 based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See 15 Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 16 F.2d 795, 798 (9th Cir. 1991). 17 SCREENING OF COMPLAINT 18 In his Complaint, Plaintiff sues multiple Defendants for events that took 19 place while Plaintiff was incarcerated at Ely State Prison (“ESP”). ECF No. 1-1 at 20 1. Plaintiff sues Defendants James Dzurenda, Patricia Hernandez, James 21 Underwood, Tasheena Cooke, and William Gittere. Id. at 2. Plaintiff brings one 22 claim and seeks monetary, punitive, and injunctive relief. Id. at 3, 13. 23 Plaintiff alleges the following. On June 2, 2020, during intake in Unit 7B, 24 Underwood loudly exposed Plaintiff’s protective custody status on tier. Id. at 3. 25 Underwood threatened to send Plaintiff to general population without 26 classification review. Id. On June 18, 2020, Plaintiff was moved to the protective 27 segregation unit (“PSU”) and was placed in a double cell with C. Gilbert, until 28 Gilbert was removed in August 2020. Id. at 3-4. 1 On September 29, 2020, “eses, NV 13, and Sureno 13 dropouts”1 2 approached Plaintiff and insinuated that Correction Officers (“C/Os”) Amber 3 Bodenhymier, Esquivel, and Clay told them that Plaintiff was snitching on them. 4 Id. at 4. They told Plaintiff that if he did not leave, then Plaintiff would be gravely 5 injured, attacked, or killed. Id. at 5. Between August and October 2020, C/Os 6 Esquivel, Bodenhymier, and Clay spread “vile rumors” to cause Plaintiff grave 7 harm or injury. Id. at 4. He alleges that they spread these rumors in retaliation 8 to Plaintiff filing grievances against them. Id. Bodenhymier and Esquivel refused 9 to collect Document 1564 or provide Document 3012 kites. Id. at 5. 10 On October 22, 2020, Esquivel attempted to force Plaintiff to double cell 11 with a blood gang member after threats were made to Plaintiff. Id. Allred told 12 Plaintiff if he did not agree to be in a double cell, then Plaintiff would receive a 13 disciplinary write-up. Id. Plaintiff requested an open cell for disabled inmates to 14 resolve the issue and because Plaintiff is disabled. Id. Allred denied Plaintiff’s 15 request and issued the disciplinary write-up. Id. 16 Bodenhymier, Esquivel, and Clay heard inmates yell over the tier all night 17 that “niggers and snitches” will die in the morning. Id. at 6. On October 17, 2020, 18 Plaintiff witnessed inmates attack and stab an African American inmate, Webb. 19 Id. at 6. Plaintiff was told that he was next. Id. However, no C/Os intervened. Id. 20 Plaintiff remained in his cell and refused to exit. Id. On October 18, 2020, while 21 he was housed in Unit 4A, inmates verbally threatened that Plaintiff would be 22 killed. Id. Ray Rivera refused to remove Plaintiff from the unit despite Plaintiff 23 submitting kites and grievances. Id. 24 On December 4, 2020, Plaintiff was moved to Unit 4b after Dugan took 25 Plaintiff’s report. Id. at 7. On September 8, 2021, Cooke ordered that Plaintiff 26 would be moved back to Unit 2B even though Plaintiff received threats to his 27 28 1 NV 13 and Sureno 13 are gangs and are referred to as security threat groups. 1 safety. Id. On September 9, 2021, C/Os Clay, Kleer, and Rowley told Plaintiff that 2 they were going to enjoy “beating [his] retarded ass and destroying all [his] shit.” 3 Id. Curtis Rigdney told Plaintiff that he had to go to the unit, or they were going 4 to gas Plaintiff and use excessive force. Id. 5 Plaintiff complied and moved back to Unit 2B. Id. Upon entering the unit, 6 Underwood, Dugan, and Hernandez heard loud threats that Plaintiff would be 7 killed or injured over the tier. Id. at 8. In September 2021, Dugan heard threats 8 to Plaintiff. Id. Underwood and Cox witnessed two inmates rush to Plaintiff’s cell 9 threatening to kill or sodomize him. Id. 10 Plaintiff was forced to move to Unit 8A. Id. at 9. He alleges that if he refused 11 to move, he would have been hit with gas and excessive force. Id. On October 11, 12 2021, Underwood heard multiple threats directed at Plaintiff and that Plaintiff 13 was called a rat and snitch. Id. On October 28, 2021, Hollisworth heard threats 14 to Plaintiff and that Plaintiff was called a rat and snitch upon re-entry to the unit. 15 Id. In October 2021, Hinckle and Dancer witnessed “NV13” loudly threaten to kill 16 Plaintiff. Id. at 10. Despite being aware of these threats, Cooke refused to remove 17 Plaintiff from the unit. Id. at 9. 18 In June 2022, Melina Castro informed Plaintiff that she would not submit 19 Plaintiff for a transfer to another facility due to PSU issues. Id. at 10. Castro told 20 Plaintiff that he would go back to the PSU,be double-housed, or placed in 21 administrative segregation indefinitely. Id. Plaintiff further alleges that Castro 22 fabricated his RFS score from 12 to 19 points to stop a transfer. Id. Castro told 23 Plaintiff that he burned his bridges with NDOC supervisors, because of his civil 24 litigation. Id. 25 Patricia Hernandez also told Plaintiff that he would be indefinitely placed 26 in administrative segregation if he did not return to the PSU. Id. at 11. Hernandez 27 also confirmed that NDOC supervisors were disgruntled with Plaintiff because of 28 his civil litigation and that Plaintiff could not be transferred from ESP. Id. On May 1 26, 2023, during administrative segregation review, Underwood told Plaintiff that 2 he was sent there due to Plaintiff’s civil litigation and grievances. Id. 3 Plaintiff alleges that he is entering three years of indefinite administrative 4 segregation. Id. at 12. As a result, he suffers from psychological, emotional and 5 physical injuries, such as muscle atrophy. Id. The Court interprets Plaintiff’s 6 allegations as stating that C/Os have labeled him as a snitch, that he is being 7 threatened by other inmates who are in security threat groups, and that he has 8 been placed in administrative segregation indefinitely. 9 Based on the allegations, the Court construes Plaintiff’s complaint to allege 10 the following claims based on different theories of liability: 11 • Violation of Fourteenth Amendment procedural due process— administrative segregation; 12 • Eighth Amendment deliberate indifference—failure to protect; 13 • First Amendment retaliation; 14 • Fourteenth Amendment—administrative grievance process; 15 • Claim under 28 U.S.C. § 1746; 16 • State law claims under NRS 208.165 and various subsections of NRS 17 209; 18 • Violation of Administrative Regulation (“AR”) claims; and 19 • Fourteenth Amendment—violation of state law. 20 21 A. Procedural Due Process—Administrative Segregation 22 Under the Fourteenth Amendment, prisoners “may not be deprived of life, 23 liberty, or property without due process of law.” Wolff v. McDonnell, 418 U.S. 539, 24 556 (1974). However, “the fact that prisoners retain rights under the Due Process 25 Clause in no way implies that these rights are not subject to restrictions imposed 26 by the nature of the regime to which they have been lawfully committed.” Id. 27 “[T]here must be mutual accommodation between institutional needs and 28 objectives and the provisions of the Constitution that are of general application.” 1 Id. The Supreme Court held that a prisoner possesses a liberty interest under the 2 federal constitution when a change occurs in confinement that “imposes atypical 3 and significant hardship on the inmate in relation to the ordinary incidents of 4 prison life.” See Sandin v. Conner, 515 U.S. 472, 484 (1995). 5 When a prisoner is placed in administrative segregation, prison officials 6 must, within a reasonable time after the prisoner’s placement, conduct an 7 informal, non-adversary review of the evidence justifying the decision to segregate 8 the prisoner. See Hewitt v. Helms, 459 U.S. 460, 476 (1983), abrogated in part on 9 other grounds by Sandin v. Connor, 515 U.S. 472 (1995). After the prisoner has 10 been placed in administrative segregation, prison officials must periodically 11 review the initial placement. See Hewitt, 459 U.S. at 477 n.9. An inmate has the 12 right to notice and the right to be heard. Mendoza v. Blodgett, 960 F.2d 1425, 13 1430 (9th Cir. 1992). The Ninth Circuit has held that where the prisoner alleges 14 material differences between the conditions in general population and 15 administrative segregation, the prisoner’s procedural due process claim should 16 not be dismissed on the pleadings. See Jackson v. Carey, 353 F.3d 750, 755-57 17 (9th Cir. 2003). 18 Plaintiff fails to state a colorable procedural due process claim. He alleges 19 that Defendants placed him in “indefinite” administrative segregation and has 20 been in administrative segregation for three years. He alleges that he suffers 21 significant, atypical hardship because isolation creates psychological and 22 emotional harm as well as physical injuries, like muscle atrophy. Plaintiff, 23 however, has not alleged when or if he was informed about the reasons for placing 24 him in administrative segregation, whether Plaintiff had the opportunity to 25 respond to those reasons, and whether prison officials have periodically reviewed 26 Plaintiff’s administrative segregation placement. Therefore, this claim is 27 dismissed without prejudice. Plaintiff may, if he so chooses, file an amended 28 complaint stating additional true facts that adequately allege a liberty interest, 1 such as the imposition of atypical conditions of confinement, and that Plaintiff 2 was denied a hearing or review of his placement in administrative segregation. 3 B. Eighth Amendment Deliberate Indifference—Failure to Protect 4 Under the Eighth Amendment, prison officials have a duty to protect 5 prisoners from violence at the hands of other prisoners. Farmer v. Brennan, 511 6 U.S. 825, 833 (1994). To establish a violation of this duty, the prisoner must 7 establish that prison officials were deliberately indifferent to serious threats to 8 the inmate’s safety. Id. at 834. To demonstrate that a prison official was 9 deliberately indifferent to a serious threat to the inmate’s safety, the prisoner 10 must show that “the official [knew] of and disregard[ed] an excessive risk to 11 inmate . . . safety; the official must both be aware of facts from which the 12 inference could be drawn that a substantial risk of serious harm exists, and [the 13 official] must also draw the inference.” Id. at 837. Prison officials may not escape 14 liability because they cannot, or did not, identify the specific source of the risk; 15 the serious threat can be one to which all prisoners are exposed. Id. at 843. 16 A prisoner seeking a remedy for unsafe conditions does not have to await 17 a tragic event such as an actual assault before obtaining relief. Id. at 845. “An 18 inmate seeking an injunction on the ground that there is a contemporary 19 violation of a nature likely to continue must adequately plead such a violation.” 20 Id. at 845-46 (quotations and citation omitted). Plaintiff must plead that prison 21 officials are “knowingly and unreasonably disregarding an objectively intolerable 22 risk of harm, and that they will continue to do so.” Id. at 846. 23 The Court finds that Plaintiff states a colorable Eighth Amendment 24 deliberate indifference failure to protect claim against Underwood and Cooke. 25 Based on the allegations, Underwood exposed Plaintiff’s protective custody 26 status, threatened to send Plaintiff to general population, witnessed multiple 27 threats directed at Plaintiff, and refused to transfer Plaintiff to another unit. 28 Cooke refused to move Plaintiff to another unit despite being aware of threats to 1 his safety. 2 In addition, Plaintiff alleges that Bodenhymier, Esquivel, and Clay told 3 other inmates that Plaintiff was a snitch to provoke violence against Plaintiff 4 because Plaintiff filed grievances against them. See Valandingham v. Bojorquez, 5 866 F.2d 1135, 1138 (9th Cir. 1989) (finding Plaintiff could state a claim for 6 violations of the Eighth and First Amendments based on his allegation that 7 officials labeled him a snitch in retaliation for filing a grievance, intentionally 8 subjecting Plaintiff to the threat of physical harm by other inmates as a result). 9 The Court construes the allegations against Bodenhymier, Esquivel, and Clay as 10 identifying them as defendants even though Plaintiff does not list them in the 11 caption of his complaint and finds that Plaintiff states a colorable Eighth 12 Amendment failure to protect claim against them. 13 The Court also finds that Plaintiff fails to allege sufficient facts to state a 14 colorable claim against Dzurenda, Hernandez, and Gittere. A defendant is liable 15 under 42 U.S.C. § 1983 “only upon a showing of personal participation by the 16 defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A supervisor is 17 only liable for constitutional violations of his subordinates if the supervisor 18 participated in or directed the violations, or knew of the violations and failed to 19 act to prevent them. There is no respondeat superior liability under [§] 1983.” Id. 20 Plaintiff does not allege that Dzurenda, Hernandez, and Gittere personally 21 participated in, directed the violations, or knew of violations by subordinates and 22 failed to act. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (holding that 23 “[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff 24 must plead that each Government-official defendant, through the official’s own 25 individual actions, has violated the Constitution”). Therefore, this claim is 26 dismissed without prejudice against Dzurenda, Hernandez, and Gittere. Plaintiff 27 may, if he so chooses, file an amended complaint stating additional true facts 28 that allow the Court to infer that Dzurenda, Hernandez, and Gittere knew about 1 the treats to Plaintiff but failed to act to remedy such. 2 C. First Amendment Retaliation 3 Prisoners have a First Amendment right to file prison grievances and to 4 pursue civil rights litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 5 (9th Cir. 2005). “Without those bedrock constitutional guarantees, inmates would 6 be left with no viable mechanism to remedy prison injustices. And because purely 7 retaliatory actions taken against a prisoner for having exercised those rights 8 necessarily undermine those protections, such actions violate the Constitution 9 quite apart from any underlying misconduct they are designed to shield.” Id. 10 To state a viable First Amendment retaliation claim in the prison context, 11 a plaintiff must allege: “(1) [a]n assertion that a state actor took some adverse 12 action against an inmate (2) because of (3) that prisoner’s protected conduct, and 13 that such action (4) chilled the inmate’s exercise of his First Amendment rights, 14 and (5) the action did not reasonably advance a legitimate correctional goal.” Id. 15 at 567-68. Total chilling is not required; it is enough if an official’s acts would 16 chill or silence a person of ordinary firmness from future First Amendment 17 activities. Id. at 568-69. A plaintiff who fails to allege a chilling effect may still 18 state a claim if he alleges that he suffered some other harm that is more than 19 minimal. Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). 20 The Court finds that Plaintiff states a colorable retaliation claim against 21 Dzurenda, Underwood, Hernandez, Cooke, and Gittere. Based on the allegations, 22 Plaintiff engaged in protective activity by filing lawsuits against NDOC officials. 23 He also alleges that he suffered adverse actions when he was placed in 24 administrative segregation, when Cooke transferred Plaintiff to another unit 25 despite threats to his safety, and Plaintiff was denied a transfer from ESP because 26 of his civil litigation. 27 In addition, as stated above, Plaintiff alleges that Bodenhymier, Esquivel, 28 and Clay told other inmates that Plaintiff was a snitch to provoke violence against 1 Plaintiff because Plaintiff filed grievances against them. See Valandingham v. 2 Bojorquez, 866 F.2d 1135, 1138 (9th Cir. 1989). The Court construes the 3 allegations against Bodenhymier, Esquivel, and Clay as identifying them as 4 defendants even though Plaintiff did not list them in the caption. This claim will 5 proceed against Dzurenda, Underwood, Hernandez, Cooke, Gittere, 6 Bodenhymier, Esquivel, and Clay. 7 D. Due Process—Administrative Grievance Process 8 Prisoners have no stand-alone due process rights related to the 9 administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th 10 Cir. 1988) (holding that a state’s unpublished policy statements establishing a 11 grievance procedure do not create a constitutionally protected liberty interest); 12 Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that there is no 13 liberty interest in the processing of appeals because there is no liberty interest 14 entitling inmates to a specific grievance process). 15 The Court finds that Plaintiff fails to state a colorable due process claim for 16 prison officials rejecting his grievances. Based on the law, Plaintiff does not have 17 a right to have prison officials process an inmate grievance in any specific way. 18 As such, the Court dismisses this claim with prejudice as amendment would be 19 futile. 20 E. 28 U.S.C. § 1746 21 Plaintiff cites to 28 U.S.C. § 1746, which provides that unsworn 22 declarations may have the same effect as sworn declarations if the plaintiff 23 includes the following: “I declare under penalty of perjury that the foregoing is 24 true and correct. Executed on [date]. [Signature].” ECF No. 1-1 at 3, 8, 9, 11. The 25 Court finds no discernible claim asserted by Plaintiff under 28 U.S.C. § 1746. 26 Accordingly, to the extent Plaintiff attempts to state a claim under 28 U.S.C. § 27 1746, the Court dismisses Plaintiff’s claim with prejudice as amendment would 28 be futile. 1 F. State Law Claims 2 Plaintiff cites several provisions of the Nevada Revised Statutes (“NRS”), 3 including NRS 208.165, NRS 209.131, NRS 209.161, and NRS 209.181. ECF No. 4 1-1 at 4, 8, 10, 11, 12. NRS 208.165 provides that an inmate may execute any 5 instrument by signing a declaration, under penalty of perjury, with the same legal 6 effect as a notarized oath. The subsections of NRS 209 that Plaintiff cites also do 7 not create a private right of action under which Plaintiff may sue. See Ross v. 8 Sandoval, Case No. 2:17-cv-02386-APG-GWF, 2017 WL 6000342, at *12 (D. Nev. 9 Dec. 4, 2017). Accordingly, to the extent Plaintiff attempts to state a claim under 10 the NRS, the Court dismisses Plaintiff’s state law claims with prejudice as 11 amendment would be futile. 12 G. Administrative Regulation Claims 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two 14 essential elements: (1) the violation of a right secured by the Constitution or laws 15 of the United States, and (2) that the alleged violation was committed by a person 16 acting under color of state law. See West, 487 U.S. at 48. NDOC’s administrative 17 regulations address general administration as well as areas, including health care 18 services and inmate regulations. The NDOC administrative regulations, however, 19 do not create any right, liberty, property interest, or establish the basis for any 20 cause of action. Accordingly, the Court dismisses any constitutional claims 21 Plaintiff is attempting to raise based on violations of the NDOC’s administrative 22 regulations with prejudice as amendment would be futile. 23 H. Due Process—Violation of State Law Only 24 To state a colorable Fourteenth Amendment Due Process Clause violation, 25 a plaintiff must establish: (1) a liberty or property interest that he or she has been 26 deprived of, and (2) that the procedures followed by the State were 27 constitutionally insufficient. Swarthout v. Cooke, 562 U.S. 216, 219 (2011). The 28 Supreme Court has held that allegations that a defendant violated state law are 1 insufficient to state a claim for violation of the Fourteenth Amendment’s Due 2 Process Clause. Id. at 222 (holding that “a ‘mere error of state law’ is not a denial 3 of due process”). 4 To the extent that Plaintiff attempts to state a Fourteenth Amendment due 5 process claim because a defendant violated NDOC administrative regulations, 6 Plaintiff does not and cannot state a colorable due process claim. Accordingly, 7 the Court dismisses this claim with prejudice as amendment would be futile. 8 LEAVE TO AMEND 9 Although the Court grants Plaintiff leave to amend, it does not grant 10 Plaintiff leave to amend in any way that he sees fit. Plaintiff has leave to amend 11 to allege additional true facts to show a Fourteenth Amendment Procedural Due 12 Process claim—administrative segregation and an Eighth Amendment deliberate 13 indifference failure to protect claim against Defendants Dzurenda, Hernandez, 14 and Gittere. The Court does not give Plaintiff leave to assert new claims. 15 If Plaintiff chooses to file an amended complaint, he is advised that an 16 amended complaint replaces the complaint, so the amended complaint must be 17 complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 18 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named 19 in the original complaint is irrelevant; an amended pleading supersedes the 20 original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) 21 (holding that for claims dismissed with prejudice, a plaintiff is not required to 22 reallege such claims in a subsequent amended complaint to preserve them for 23 appeal). This means that the amended complaint must contain all facts and 24 claims and identify all defendants that he intends to sue, including the claims 25 found cognizable in this order. He must file the amended complaint on this 26 Court’s approved prisoner-civil-rights form, and it must be entitled “First 27 Amended Complaint.” Plaintiff must follow the instructions on the form. He need 28 not and should not allege very many facts in the “nature of the case” section of 1 the form. Rather, in each claim, he should allege facts sufficient to show what 2 each defendant did to violate his civil rights. He must file the amended complaint 3 within 30 days from the date of entry of this order. If Plaintiff chooses not to file 4 an amended complaint curing the stated deficiencies, this action will proceed on 5 the Eighth Amendment failure to protect claim against Underwood, Cooke, 6 Bodenhymier, Esquivel, and Clay and the First Amendment retaliation claim 7 against Dzurenda, Underwood, Hernandez, Cooke, Gittere, Bodenhymier, 8 Esquivel, and Clay only. 9 CONCLUSION 10 It is therefore ordered that a decision on the application to proceed in forma 11 pauperis (ECF No. 1) is deferred. 12 It is further ordered that the Clerk of the Court is directed to (1) file the 13 Complaint (ECF No. 1-1) and (2) send Plaintiff a courtesy copy of the Complaint. 14 It is further ordered that the Clerk of the Court is directed to add 15 Bodenhymier, Esquivel, and Clay as defendants to the docket sheet. 16 It is further ordered that the First Amendment retaliation claim will proceed 17 against Defendants Dzurenda, Underwood, Hernandez, Cooke, Gittere, 18 Bodenhymier, Esquivel, and Clay. 19 It is further ordered that the Eighth Amendment deliberate indifference 20 failure to protect claim will proceed against Defendants Underwood, Cooke, 21 Bodenhymier, Esquivel, and Clay. 22 It is further ordered that the Fourteenth Amendment procedural due 23 process claim is dismissed without prejudice and with leave to amend. 24 It is further ordered that the 28 U.S.C. § 1746 claim is dismissed with 25 prejudice as amendment would be futile. 26 It is further ordered that the state law claims under NRS 208.165, NRS 27 209.131, NRS 209.161, and NRS 209.181 are dismissed with prejudice as 28 amendment would be futile. 1 It is further ordered that any constitutional claims based on violations of 2 NDOC’s administrative regulations are dismissed with prejudice as amendment 3 would be futile. 4 It is further ordered that Fourteenth Amendment due process claim related 5 to the administrative grievance process is dismissed with prejudice as 6 amendment would be futile. 7 It is further ordered that the Fourteenth Amendment due process claim 8 related to violations of state law is dismissed with prejudice as amendment would 9 be futile. 10 It is further ordered that if Plaintiff chooses to file an amended complaint 11 curing the deficiencies of his complaint, as outlined in this order, Plaintiff will file 12 the amended complaint within 30 days from the date of entry of this order. 13 It is further ordered that the Clerk of the Court will send to Plaintiff the 14 approved form for filing a § 1983 complaint and instructions for the same. If 15 Plaintiff chooses to file an amended complaint, he should use the approved form 16 and he will write the words “First Amended” above the words “Civil Rights 17 Complaint” in the caption. 18 It is further ordered that, if Plaintiff chooses to file an amended complaint, 19 the Court will screen the amended complaint in a separate screening order. The 20 screening process will take several months. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 It is further ordered that, if Plaintiff chooses not to file an amended 2 || complaint curing the stated deficiencies of the complaint, this action will proceed 3 || immediately on the Eighth Amendment failure to protect claim against 4 || Underwood, Cooke, Bodenhymier, Esquivel, and Clay and the First Amendment 5 || retaliation claim against Dzurenda, Underwood, Hernandez, Cooke, Gittere, 6 || Bodenhymier, Esquivel, and Clay only. 7 8 DATED THIS 20th day of December 2023. 9 10 Ana □□□ Td 1 ANNE R. TRAUM 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28