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Olivas v. State ex rel. Department of Corrections

United States Court of Appeals, Ninth Circuit

May 19, 2017

Dario Olivas, Plaintiff-Appellant,
v.
State of Nevada, ex rel. Department of Corrections; Nicholas Galbiso, individually, Defendants-Appellees.

          Submitted May 10, 2017 [*]

         Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding. D.C. No. 2:14-cv-01801-JCM-VCF

          Cal. J. Potter III and C.J. Potter III, Potter Law Offices, Las Vegas, Nevada, for Plaintiff-Appellant.

          Clark G. Leslie, Chief Deputy Attorney General, Public Safety/Litigation Division; Adam Paul Laxalt, Attorney General; United States Attorney's Office, Carson City, Nevada; for Defendants-Appellants.

          Before: Richard R. Clifton and Michelle T. Friedland, Circuit Judges, and Thomas O. Rice, [**] Chief District Judge.

         SUMMARY [***]

         Prisoner Civil Rights

         The panel reversed the district court's dismissal of a complaint brought by a former prisoner and remanded for further proceedings.

         The panel held that the Prison Litigation Reform Act, 28 U.S.C. § 1915A, applies only to claims brought by individuals incarcerated at the time they file their complaints. Because plaintiff was not so incarcerated, his claims should not have been subjected to § 1915A screening.

          OPINION

          PER CURIAM

         Dario Olivas, a former prisoner, sued correctional officers and the Nevada Department of Corrections alleging violations of the Eighth Amendment and various state laws for injuries he suffered, and the medical treatment he received, after he was struck by shotgun pellets that officers fired in an attempt to quell an inmate altercation. The district court treated the lawsuit as one brought by a prisoner and thus applied the screening procedures established by § 1915A of the Prison Litigation Reform Act ("PLRA"), 28 U.S.C. § 1915A, dismissing the Complaint pursuant to those procedures. We hold that 28 U.S.C. § 1915A applies only to claims brought by individuals incarcerated at the time they file their complaints. Because Olivas was not so incarcerated, his claims should not have been subjected to § 1915A screening. We therefore reverse and remand.

         I.

         On July 31, 2012, an altercation broke out in the dining hall at High Desert State Prison.[1] Dario Olivas, a prisoner at the time, was seated several tables away from the altercation and was not involved in it. "[A]lmost immediately after the altercation began, " one or more officers fired pellets from a shotgun into the dining room. The pellets struck Olivas in the eye, face, and upper body. As a result, he lost sight in his right eye and suffered permanent disfigurement, excruciating pain, and extreme shock.

         Olivas was released from prison in June 2014. In July 2014, Olivas filed a pro se complaint in state court. After retaining counsel, Olivas filed an amended complaint against Correctional Officer Galbiso, the Nevada Department of Corrections, and ten John Doe ...


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