1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA

3 JOSE BURGOS, Case No. 2:24-cv-01359-GMN-BNW

4 Plaintiff SCREENING ORDER ON THIRD AMENDED COMPLAINT 5 v. (ECF No. 20)

6 DR. AVRAM, et al.,

7 Defendants

8

9 On June 4, 2025, the Court issued an Order screening Plaintiff Jose Burgos’ 10 Second Amended Complaint under 28 U.S.C. § 1915A. (ECF No. 19.) The Screening 11 Order dismissed the Second Amended Complaint without prejudice for failure to state a 12 claim, granted Plaintiff leave to file a Third Amended Complaint, and warned him that the 13 Third Amended Complaint was his final opportunity to file a viable complaint in this case. 14 (Id. 4, 8–9.) Plaintiff has filed a Third Amended Complaint (“TAC”) (ECF No. 20), and the 15 Court now screens the TAC under 28 U.S.C. § 1915A. 16 I. SCREENING STANDARD 17 Federal courts must conduct a preliminary screening in any case in which an 18 incarcerated person seeks redress from a governmental entity or officer or employee of 19 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify 20 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 21 claim upon which relief may be granted, or seek monetary relief from a defendant who is 22 immune from such relief. See id. §§ 1915A(b)(1), (2). Pro se pleadings, however, must 23 be liberally construed. See Balistreri v. Pacifica Police Dep’t,

(9th Cir. 24 1990). To state a claim under

, a plaintiff must allege two essential 25 elements: (1) the violation of a right secured by the Constitution or laws of the United 26 States; and (2) that the alleged violation was committed by a person acting under color 27 of state law. See West v. Atkins,

(1988). 28 In addition to the screening requirements under § 1915A, under the Prison 1 Litigation Reform Act, a federal court must dismiss an incarcerated person’s claim if “the 2 allegation of poverty is untrue” or if the action “is frivolous or malicious, fails to state a 3 claim on which relief may be granted, or seeks monetary relief against a defendant who 4 is immune from such relief.”

(e)(2). Dismissal of a complaint for failure 5 to state a claim upon which relief can be granted is provided for in Federal Rule of Civil 6 Procedure 12(b)(6), and the Court applies the same standard under § 1915 when 7 reviewing the adequacy of a complaint or an amended complaint. When a court 8 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the 9 complaint with directions as to curing its deficiencies, unless it is clear from the face of 10 the complaint that the deficiencies could not be cured by amendment. See Cato v. United 11 States,

, 1106 (9th Cir. 1995). 12 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 13 Chappel v. Lab. Corp. of Am.,

(9th Cir. 2000). Dismissal for failure to 14 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 15 support of the claim that would entitle him or her to relief. See Morley v. Walker,

(9th Cir. 1999). In making this determination, the Court takes as true all 17 allegations of material fact stated in the complaint, and the Court construes them in the 18 light most favorable to the plaintiff. See Warshaw v. Xoma Corp.,

(9th 19 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 20 formal pleadings drafted by lawyers. See Hughes v. Rowe,

(1980). While 21 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 22 must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly, 23

(2007). A formulaic recitation of the elements of a cause of action is 24 insufficient. See

25 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 26 that, because they are no more than mere conclusions, are not entitled to the assumption 27 of truth.” Ashcroft v. Iqbal,

(2009). “While legal conclusions can provide 28 the framework of a complaint, they must be supported with factual allegations.”

“When 1 there are well-pleaded factual allegations, a court should assume their veracity and then 2 determine whether they plausibly give rise to an entitlement to relief.”

“Determining 3 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 4 requires the reviewing court to draw on its judicial experience and common sense.”

5 Finally, all or part of a complaint filed by an incarcerated person may be dismissed sua 6 sponte if that person’s claims lack an arguable basis either in law or in fact. This includes 7 claims based on legal conclusions that are untenable (e.g., claims against defendants 8 who are immune from suit or claims of infringement of a legal interest which clearly does 9 not exist), as well as claims based on fanciful factual allegations (e.g., fantastic or 10 delusional scenarios). See Neitzke v. Williams,

, 327–28 (1989); see also 11 McKeever v. Block,

(9th Cir. 1991). 12 II. SCREENING OF TAC 13 The first complaint screened in this case was Plaintiff’s First Amended Complaint. 14 (ECF No. 11.) In the First Amended Complaint, Plaintiff sued Dr. Avram and an unnamed 15 Director of Nursing for deliberate indifference to serious medical needs based on events 16 that allegedly occurred while Plaintiff was confined at High Desert State Prison (“HDSP”). 17 (Id. at 1–5.) The Court found that Plaintiff had plausibly alleged that he suffered from 18 objectively serious medical needs based on his diagnosed neuropathy, chest pain, and 19 hand pain. (ECF No. 10 at 5.) However, the Court found that Plaintiff failed to state a 20 colorable claim for deliberate indifference to serious medical needs because he had not 21 alleged facts to plausibly show that either Dr. Avram or the Director of Nursing personally 22 knew about and disregarded his serious medical needs.1 (Id. at 5–7.) Therefore, the 23 Court dismissed the First Amended Complaint, granted Plaintiff leave to amend, and 24 advised him as follows: “If Plaintiff chooses to file a Second Amended Complaint, he 25 should allege facts to explain how each named Defendant—whether that Defendant is 26 27 1 The First Amended Complaint also included a failure-to-protect claim, but because Plaintiff’s allegations concerned just the adequacy of his medical care, the Court 28 dismissed the failure-to-protect claim without prejudice to addressing Plaintiff’s medical treatment under the appropriate framework. (ECF No. 10 at 4–5.) 1 Dr. Avram, the Director of Nursing, or some other member of prison staff—knew about 2 and disregarded Plaintiff’s serious medical needs.” (Id. at 7.) 3 The Second Amended Complaint presented the same deficiencies as the First 4 Amended Complaint. That is, Plaintiff again named only Dr. Avram and HDSP’s Director 5 of Nursing as Defendants, and Plaintiff again did not allege facts to plausibly show how 6 either of these Defendants was personally deliberately indifferent to his serious medical 7 needs. (See ECF No. 18 at 1–6, 10–12.) Indeed, after listing Dr. Avram and the Director 8 of Nursing as Defendants in the caption of the Second Amended Complaint, Plaintiff did 9 not mention them at all in the body of the Second Amended Complaint. (See id.) So the 10 Court again found that Plaintiff failed to state a colorable claim for deliberate indifference 11 to serious medical needs, dismissed the Second Amended Complaint, and granted 12 Plaintiff leave to amend.2 (ECF No. 19 at 6–8.) The Court advised Plaintiff that, “if he files 13 a Third Amended Complaint, he is not restricted to naming only Dr. Avram or the Director 14 of Nursing as Defendants,” and that he could sue individuals he did not know the names 15 of by separately identifying them as Doe Defendants. (Id. at 8.) However, the Court also 16 advised Plaintiff that he “must [] allege sufficient facts to show what each specific 17 Defendant—including any Doe Defendant—did to violate his rights.” (Id.) And the Court 18 warned Plaintiff that the Third Amended Complaint was his “final opportunity to file a 19 viable complaint in this case,” so failure to cure the deficiencies outlined in the Screening 20 Order would “subject this entire action to dismissal for failure to state a claim, without 21 further leave to amend.” (Id. at 4.) 22 The TAC that is currently before the Court (ECF No. 20) does not cure the 23 deficiencies outlined in the prior Screening Order. The only substantive difference 24 between the TAC and the Second Amended Complaint is that Plaintiff no longer lists Dr. 25 Avram and the unnamed Director of Nursing as Defendants; instead, he now sues four 26 unidentified individuals referred to in the caption as CO John Doe #1, CO John Doe #2,

27 2 The Second Amended Complaint also included a failure-to-protect claim and an equal 28 protection claim, but because Plaintiff’s allegations did not include any facts to support those claims, the Court dismissed them without prejudice. (ECF No. 19 at 5–6.) 1 John Doe #3 Nursing, and Jane Doe #4 Nursing. (Id. at 1.) Otherwise, the factual 2 allegations and claims in the TAC are the same as in the Second Amended Complaint. 3 (Compare

at 2–3, 5, 10–12, with ECF No. 18 at 2–4, 10–12.) 4 Because Plaintiff alleges no new facts in the TAC, the Court repeats the summary 5 of factual allegations from its prior Screening Order: 6 Plaintiff went to a hospital in Las Vegas and was diagnosed with neuropathy 7 in his fingers and hands. After returning to HDSP, Plaintiff experienced severe pain in his fingers, hands, and chest. In July 2024, Plaintiff filed at 8 least three emergency grievances requesting treatment. By July 27, 2024, Plaintiff had not received any treatment, and his chest pain led him to “man 9 down” with a night shift correctional officer (“CO”). Plaintiff still did not receive treatment, and that CO told Plaintiff that “filing emergency 10 grievances is not going to work to be seen by medical.” On July 31, 2024, Plaintiff was taken to “medical” to discuss his blood work, and when he 11 asked about the emergency grievances he filed regarding neuropathy and chest pain, “medical was unaware” of them. On August 17, 2024, Plaintiff’s 12 pain led him to “man down” again with the night shift CO, but Plaintiff still did not receive treatment, and the CO would not give him an emergency 13 grievance. Plaintiff’s chest pain continued to go untreated at least until Plaintiff transferred from HDSP to Ely State Prison in March or April 2025. 14 15 (ECF No. 19 at 4–5 (internal citations omitted).) 16 As explained in the prior Screening Orders, prisoners have an Eighth Amendment 17 right to be free from deliberate indifference to serious medical needs. Farmer v. Brennan, 18

(1994). To establish a violation of this right, “a plaintiff must satisfy 19 both an objective standard—that the deprivation was serious enough to constitute cruel 20 and unusual punishment—and a subjective standard—deliberate indifference.” Snow v. 21 McDaniel,

(9th Cir. 2012), overruled on other grounds by Peralta v. 22 David,

(9th Cir. 2014)). In the TAC, just as in the First and Second 23 Amended Complaints, Plaintiff does not allege facts to plausibly show how any particular 24 Defendant was deliberately indifferent to his medical needs. (See ECF No. 20 at 2–5, 10– 25 12.) The allegations in the TAC reference one or more unidentified night shift COs and 26 one or more unidentified members of “medical” (see

at 10–12), but the allegations 27 does not refer to any of these unidentified individuals by the names given to the Doe 28 Defendants in the caption of the TAC (CO John Doe #1, CO John Doe #2, John Doe #3 1 Nursing, and Jane Doe #4 Nursing). (See id. at 1.) So the Court is unable to discern 2 which (if any) of the unidentified individuals referenced in TAC is represented by a 3 particular Doe Defendant. That is not sufficient to state a colorable claim. See Sena v. 4 Daniels, No. 2:21-cv-1154-GMN-NJK,

, at *6 n.3 (D. Nev. Sept. 30, 5 2021) (“A plaintiff must allege in the complaint what each separately identified Doe 6 defendant did to violate [his] rights. The Court must be able to discern which specific 7 unnamed person allegedly violated a plaintiff’s rights in a particular situation. Thus, a 8 plaintiff must separately describe each individual Doe and describe the role each of them 9 played violating [his] rights, alleging facts sufficient to state a colorable claim against each 10 specific Doe defendant.”). 11 Plaintiff also fails to state a colorable failure-to-protect claim because the TAC’s 12 allegations concern the adequacy of Plaintiff’s medical care, not the conditions of his 13 confinement. See Lemire v. Cal. Dep’t of Corr. & Rehab.,

(9th Cir. 14 2013) (quoting Farmer,

) (“In a failure to protect claim, an inmate satisfies 15 the ‘sufficiently serious deprivation’ requirement by ‘show[ing] that he is incarcerated 16 under conditions posing a substantial risk of serious harm.’”). And Plaintiff fails to state a 17 colorable equal protection claim because the TAC does not allege that Plaintiff’s lack of 18 medical treatment was due to membership in a protected class or that he was treated 19 differently than other similarly situated inmates. See Lee v. City of L.A.,

, 20 686 (9th Cir. 2001) (setting out the requirements for a standard equal protection claim); 21 Lazy Y Ranch Ltd. v. Behrens,

(9th Cir. 2008) (setting out the 22 requirements for a class-of-one equal protection claim). 23 Moreover, even if the Court were to liberally construe the allegations in the TAC 24 as stating a colorable claim against one or more particular Doe Defendant, the TAC would 25 still not be viable. A case cannot proceed when the only potentially viable Defendants 26 are unidentified, as the Court cannot order service of a complaint on an unidentified 27 person. Ordinarily, when a complaint has no identified Defendants to serve, the Court 28 may dismiss it without prejudice and grant leave to amend to give the plaintiff an 1 opportunity to file a complaint that states at least one colorable claim against at least one 2 identified Defendant. In those situations, plaintiffs are first encouraged to use whatever 3 available procedures exist at their places of confinement to learn the name of a particular 4 defendant. Then, if that method of investigation proves unsuccessful, the plaintiffs are 5 permitted to file a properly supported and complete motion under Federal Rule of Civil 6 Procedure 45 for the Court to issue a subpoena duces tecum. A subpoena duces tecum 7 requires the person served with the Rule 45 subpoena to provide requested information 8 in their possession. 9 Here, however, Plaintiff has already filed a non-viable complaint in this case on 10 three separate occasions. And the Court warned Plaintiff what would happen if the Third 11 Amended Complaint was not viable—this entire action would be dismissed without 12 prejudice, without further leave to amend. The Court therefore dismisses the TAC without 13 prejudice, without leave to amend. See Leadsinger, Inc. v. BMG Music Pub.,

(9th Cir. 2008) (quoting Foman v. Davis,

(1962) (“The 15 decision of whether to grant leave to amend nevertheless remains within the discretion of 16 the district court, which may deny leave to amend due to ‘ . . . repeated failure to cure 17 deficiencies by amendments previously allowed . . . .’”)). This dismissal without prejudice 18 allows Plaintiff to pursue his claims in a new case, if he so chooses, by filing a complaint 19 under a new case number that contains at least one colorable claim against at least one 20 identified Defendant. If Plaintiff chooses to initiate a new case, and he still has not been 21 able to identify at least one Defendant, then he may file a properly supported and 22 complete motion under Rule 45 for the Court to issue a subpoena duces tecum in the 23 new case.3 24 25 26 3 Plaintiff must carefully review Rule 45 of the Federal Rules of Civil Procedure before filing any motion for a subpoena duces tecum in the new case. In general, however, the 27 Court advises Plaintiff that any such motion must attach a copy of his proposed Rule 45 subpoena(s) to his motion, and that motion must clearly identify the documents that would 28 have the information Plaintiff is seeking and explain why the documents and information would be available from the company, entity, or person that is the target of the subpoena. 1] Ill CONCLUSION 2 It is therefore Ordered that the Third Amended Complaint (ECF No. 20) is 3| dismissed without prejudice for failure to state a claim. 4 The Clerk of Court is kindly requested to enter judgment accordingly and close this 5| case. No other documents may be filed in this now-closed case. If Plaintiff wishes to 6 | pursue his claims, he must file a complaint in a new case, under a new case number, that 7| contains at least one colorable claim against at least one identified Defendant. 8 It is further Ordered that any appeal from this Order would not be taken “in good 9| faith” under

(a), so the Court will not grant Plaintiff in forma pauperis 10| status on any appeal. 11 DATED: June 30, 2025 Yj 12 iy yy 13 Gloria M. Navarro, Judge 14 United ae District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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