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Dean v. Palmer

United States District Court, D. Nevada

June 2, 2014

TRAVIS REMAUL DEAN, Plaintiff,
v.
JACK PALMER, et al., Defendants.

ORDER

LARRY R. HICKS, District Judge.

This prisoner civil rights action comes before the Court for initial review under 28 U.S.C. § 1915A as well as on miscellaneous motions (##28 & 29) by plaintiff described in further detail infra.

Screening

Following upon the Court's prior order (#26) with regard to piecemeal amendments, plaintiff has elected to proceed on the amended complaint (#21) filed on September 6, 2013, rather than the later amended complaint (#23) filed on January 24, 2014. See #27, at 2, lines 2-3; #29, at 2, lines 10-12, 17-18 & 24-27. The Court therefore will screen the September 6, 2013, amended complaint (#21). The Court will strike the January 24, 2014, amended complaint (#23) so that it is clear on the face of the record which pleading remains before the Court.

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 (2009). That is, 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 (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.... 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... (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).

Plaintiff Travis Remaul Dean brings three counts against, in their individual and official capacity, former Lovelock Correctional Center ("Lovelock") Warden Jack Palmer together with Correctional Officers Henry Godecke and Stephen Clark.

Count I fails to state a claim upon which relief may be granted. In Count I, plaintiff alleges that he has been denied a multitude of constitutional rights "based upon the milieu of dictatorship of employee nepotism of family, family friends, and friends at Lovelock." The three plus pages of the count consist of similar at best conclusory and at worst meaningless jargon and present no actual factual allegations. Plaintiff alleges, for example, that "Jack Palmer and his heads have slipped almost imperceptibly in the space of only a political interzone, a [sic] extremely large dangerous unconstitutional crack in the department pavement of demoracy [sic]." The allegations that come closest to actual factual allegations assert that none of plaintiff's grievances have been denied as frivolous or malicious and that they instead have been denied because he was making allegations without facts. However, merely because grievances were not denied as frivolous or malicious does not in any sense signify that plaintiff has a viable federal constitutional claim. Further, it is established law that an inmate does not have a constitutional right to have his grievances either decided or processed in a particular manner. See, e.g., Seely v. Gibbons, 2013 WL 6440206 (9th Cir. Dec. 10, 2013); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Further, an alleged violation of a state corrections department administrative regulation regarding grievance procedures does not give rise to a deprivation of a protected liberty interest for purposes of the due process clause. See, e.g., Sandin v. Conner, 515 U.S. 472 (1995). The largely fanciful allegations of Count I thus fail to state a claim.

Count II fails to state a claim upon which relief may be granted. In Count II, plaintiff alleges that he has been denied a multitude of constitutional rights "based upon sexual harassment and sexual assault against me by an official of the department." The count contains no non-conclusory actual factual allegations, however, regarding any such alleged sexual harassment or assault. The count instead alleges that plaintiff received a notice of charges in September 2008 written by defendant Godecke for having possession of another inmate's property. Plaintiff alleges that the charge was dismissed on December 8, 2008, for having "exceeded the time frame." Plaintiff thereafter alleges no discernible constitutional violation or actionable injury. His allegations that a grievance was returned to him for lack of a proper form and thereafter "mysteriously disappeared" fail ...


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