United States District Court, D. Nevada
ANDREW P. GORDON, District Judge.
This pro se prisoner civil rights action by Nevada state inmate comes before the Court for initial review of the complaint under 28 U.S.C. § 1915A as well as upon a motion (Dkt. #10) for summary judgment by plaintiff. The Court defers action on the pauper application at present.
When a "prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, " the court must "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b).
In considering whether the plaintiff has stated a claim upon which relief can be granted, all material factual allegations in the complaint are accepted as true for purposes of initial review and are to be construed in the light most favorable to the plaintiff. See, e.g., Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). However, mere legal conclusions unsupported by any actual allegations of fact are not assumed to be true in reviewing the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 677-81 (2009). That is, bare and conclusory assertions that constitute merely formulaic recitations of the elements of a cause of action and that are devoid of further factual enhancement are not accepted as true and do not state a claim for relief. Id.
Further, the factual allegations must state a plausible claim for relief, meaning that the wellpleaded facts must permit the court to infer more than the mere possibility of misconduct:
[A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [ Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).] A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id., at 557, 127 S.Ct. 1955 (brackets omitted).
.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n]" - "that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).
Iqbal, 556 U.S. at 679.
Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520(1972).
Plaintiff John Turner alleges that his prison grievances have not been responded to within the required time. In Count I, he alleges that this alleged failure constitutes "abandonment" in violation of the First, Fifth and Fourteenth Amendments. In Count II, he alleges that this alleged failure deprived him of due process in violation of the Fifth And Fourteenth Amendments. He seeks compensatory and punitive damages, and he asserts in the prayer that because "of these write up's [sic] I'm being held in D-seg [disciplinary segregation] [and] also I could've been at an [sic] camp or Casa Grande [a halfway house] by now."
At the very outset, plaintiff may not proceed against the State and the state department of corrections in federal court. First, plaintiff may not proceed against the State or an arm of the State due to the state sovereign immunity recognized under the Eleventh Amendment. See, e.g., Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). State sovereign immunity bars suit in federal court against a State or an arm of a State regardless of the relief sought. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100-01 (1984). Second, a State or an arm of a State is not a "person" subject to suit under 42 U.S.C. § 1983. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 & n.10 (1989).
Plaintiff further may not proceed against High Desert State Prison. The prison is just a set of buildings. The prison is not a juridical person or entity subject to suing or being sued.
Finally, with respect to the sole remaining defendant, plaintiff likely will not be able to obtain effective service on a defendant identified only as "Grievance Coordinator, " even named in only an official capacity. That is, plaintiff may have substantial difficulty proceeding with his suit if the sole defendant ...