United States District Court, D. Nevada
ROBERT C. JONES, District Judge.
This pro se prisoner civil rights action by a Nevada state inmate comes before the Court for initial review under 28 U.S.C. § 1915A as well as on plaintiff's application (#1) to proceed in forma pauperis. The Court finds that plaintiff is unable to pay a substantial initial partial filing fee, and the pauper application therefore will be granted subject to the remaining provisions of this order.
Turning to initial review, 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 & 686-87 (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 well-pleaded 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 678.
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).
In the complaint, plaintiff Ronald Alex Stevenson seeks "pre-enforcement" declaratory relief as against Churchill County and Churchill County District Attorney Arthur E. Mallory. Plaintiff challenges purportedly the future enforcement of N.R.S. 200.710,  which prohibits using a minor in producing pornography or as the subject of a sexual portrayal in a performance. Plaintiff currently is held at Lovelock Correctional Center, which is in Pershing County, Nevada.
Plaintiff acknowledges in the complaint that he currently stands convicted of violating N.R.S. 200.710(2), after being convicted on June 30, 2004, in Churchill County in No. CR-29440. Plaintiff alleges that his "subjects" were 16 years old.
Plaintiff alleges that the state supreme court's construction of "minor" under N.R.S. 200.710 as an individual under 18 years of age is overbroad and violates his alleged First Amendment right to produce sexual portrayals of 16 and 17 year olds. He further alleges that N.R.S. 200.710 "fundamentally conflicts" with N.R.S. 200.730, which prohibits using the internet to view actual or simulated sexual conduct depicting persons only "under the age of 16." He seeks a declaration allowing him to produce without violating N.R.S. 200.710 depictions that he allegedly can use the internet to view without violating N.R.S. 200.730, i.e., depictions of 16 and 17 year olds engaging in sex.
Stevenson alleges that "[a]fter incarceration, Plaintiff expressly intends to move back to Churchill County and produce sexual portrayals of consenting individuals 16 years of age and older as a non-commercial hobby if it is not illegal under NRS 200.710(2)." #1-1, at 4-B (at electronic docketing page 6)(emphasis in original).
At the outset, plaintiff lacks standing to pursue the claims presented, as it is conjectural at this point at the very least as to when plaintiff in fact will be back in Churchill County to pursue his purported hobby. In order to establish the standing required for a justiciable case or controversy, a plaintiff must establish, inter alia, that he has sustained an injury in fact. To do so, he must establish the invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent rather than conjectural or hypothetical. E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Plaintiff's assertion that he "expressly intends" to move back to Churchill County and produce pornography with 16 and 17 year olds "after incarceration" presents a conjectural rather than an actual or imminent injury. Such allegations that a plaintiff intends to return to an area "some day" or "in the future" and anticipates being involved in a controversy at that time fail to establish actual or imminent injury. See, e.g., Summers v. Earth Island Institute, 555 U.S. 488, 495-96 (2009)(plaintiff had visited many National Forests and planned to visit several unnamed National Forests in the future); Lujan, 504 U.S. at 563-64 (plaintiffs intended, at some indeterminate time, to return to countries that they had visited before and they ...