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Leyva v. Portlock

United States District Court, W.D. Arkansas, Fayetteville Division

September 20, 2018




         Plaintiff, Eduardo Lamas Leyva, filed this action pursuant to 42 U.S.C. §1983. He proceeds pro se and in forma pauperis. The case is before the Court for preservice screening under the provisions of the Prison Litigation Reform Act (PLRA). Pursuant to 28 U.S.C. § 1915A, the Court has the obligation to screen any complaint in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).

         I. BACKGROUND

         The original Complaint (ECF No. 1) did not state how each of the Defendants had violated Plaintiff's federal constitutional rights. Plaintiff was, therefore, ordered (ECF No. 4) to file an amended complaint by June 26, 2018. Plaintiff was told to utilize the Court's approved § 1983 complaint form. A copy of the form was sent to him.

         Following several extensions of time due to changes in Plaintiff's address, the Amended Complaint (ECF No. 15) was filed on August 9, 2018. The Amended Complaint was not submitted on the form and contained several pages written completely in Spanish. While Plaintiff indicated he spoke “very limited” English and was having a friend translate for him, it was unclear if all pages had been translated (fifteen Spanish pages versus only eight pages in English) or what precisely the situation was. The Court could not determine if all Plaintiff's allegations were fully translated. By Order (ECF No. 17) entered on August 22, 2018, Plaintiff was directed to file a Second Amended Complaint written entirely in English by September 12, 2018. The Complaint was to be verified by both the Plaintiff and the inmate translator. Plaintiff was advised that failure to obey the Order would subject the case to dismissal.

         The Second Amended Complaint (ECF No. 18) was filed on September 6, 2018. The Second Amended Complaint was not submitted on the § 1983 form complaint and consists of thirty-five pages of a mix of handwritten material, incident reports, and disciplinary reports. The material is not arranged in any apparent order. The material does not even specify who Plaintiff intends to name as Defendants. The Court has therefore added as Defendants those individuals Plaintiff makes specific allegations against. Plaintiff did not verify the documents nor is there any verification, or even the name of, the translator.

         From the materials submitted as the Second Amended Complaint, the following can be gleaned:

(1). On some unspecified date, Plaintiff alleges he discovered, with his regular mail, a letter that talked about an inmate snitching on another. It is not clear whether Plaintiff was the alleged “snitcher.” However, this letter allegedly put the Plaintiff's life at risk as well as the lives of his family. In fact, Plaintiff maintains a family member was later assassinated because of this letter;
(2). On April 15, 2018, Plaintiff was charged with a major disciplinary after Officers Portlock and Velasco allegedly found tobacco in Plaintiff's property;
(3). On April 16, 2018, Plaintiff was issued a major disciplinary by Officer Brooks;
(4). On April 26, 2018, some of Plaintiff's property was lost when he was moved to a different pod. That same day, Plaintiff also alleges he informed Officer Velasco about the letter where death threats were made against Detainee Nicholson.[1] Officer Velasco ignored him;
(5). On May 12, 2018, Plaintiff was issued a major disciplinary by Deputy N. Howerton and Deputy Yates after Plaintiff refused to get out of the shower;
(6). Officer C. McClellan harassed Plaintiff, was racist towards him, and threatened to put Plaintiff in the “hole” if he continued submitting anything on the kiosk;
(7). On an unspecified number of occasions, Plaintiff went sixty-hours without a shower;
(8). In the early morning on some unspecified date(s), Officer C. Beaver harassed the Plaintiff by shining a light on him until he woke up;
(9). On a single occasion, when it was made to look like Plaintiff refused his meal, Officer Grimes asked Plaintiff if he wanted his food. Plaintiff answered affirmatively but states he did not get the food until later and then without the drink;[2]
(10). There were times he was not allowed access to the kiosk, when his grievances were blocked or ignored, and when he was asked to submit his grievances in English even though part of the staff was bi-lingual; and
(11). Plaintiff asserts official capacity claims against Washington County.


         Under the PLRA, the Court is obligated to screen the case prior to service of process being issued. The Court must dismiss a complaint, or any portion of it, if it contains claims that: (1) are frivolous, malicious, or fail to state a claim upon which relief may be granted; or, (2) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).

         A claim is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim fails to state a claim upon which relief may be granted if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “In evaluating whether a pro se plaintiff has asserted sufficient facts to state a claim, we hold ‘a pro se complaint, however inartfully pleaded ... to less stringent standards than formal pleadings drafted by lawyers.'” Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

         III. ...

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