United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
This pro se prisoner civil rights action by a state inmate comes before the court for initial review of the amended complaint (#20-1) under 28 U.S.C. § 1915A, as well as on plaintiff's application (#1) to proceed in forma pauperis, motion (#17) for sanctions, motion (#20) for leave to file an amended complaint, and motion (#21) for appointment of counsel.
It appears that plaintiff filed the motion for leave to file an amended complaint after he first filed an amended complaint (#19) that, inter alia, was on a state court form. The court will grant the motion for leave to amend and thus will screen the superceding amending pleading submitted with the motion.
The prior screening order (#16) dismissed the original complaint without prejudice and with leave to amend. The order outlines the screening standard and the application of the standard to the claims in the original complaint.
The amended complaint does not correct the deficiencies in the original complaint.
Plaintiff still seeks to proceed against the State of Nevada despite being informed that state sovereign immunity bars any suit in federal court against the state. #16, at 2-3.
Plaintiff still seeks to proceed against High Desert State Prison, the "H.D.S.P. Law Library, " and the "H.D.S.P. Canteen" despite being informed that the prison buildings and the other purported defendants are not juridical persons subject to being sued.
Plaintiff adds state corrections department director Cox as a defendant in his official capacity. However, first, plaintiff cannot proceed against a state official for monetary damages, which is the only relief sought, in their official capacity; second, plaintiff otherwise states no actual factual allegations in the amended complaint that would establish liability on the part of Cox in his individual capacity; and, third, as discussed infra, plaintiff states no claim for relief in the amended complaint in all events.
Amended count I continues to fail to state a claim upon which relief may be granted. The statement in the prior screening order as to original count I continues to apply to amended count I:
There is no due process right to legal supplies under the fourteenth amendment. To the extent that plaintiff alleges that he has been denied supplies allegedly in violation of corrections department administrative regulations, he fails to state a claim for relief. The violation of state administrative regulations does not in and of itself establish that a plaintiff has been denied a protected liberty interest. Sandin v. Conner, 515 U.S. 472, 476-86 (1995).
#16, at 3. The allegations in amended count I do not state a due process violation.
Amended count II fails to state a viable claim under the first amendment for denial of access to the courts. The screening order outlined at length the governing law requiring that a plaintiff demonstrate (a) actual injury to (b) pursuit of litigation either attacking his conviction or challenging the conditions of his confinement. See #16, at 3-4. Plaintiff has not presented actual factual allegations tending to establish more than the mere possibility of misconduct and thereby giving rise to a viable claim based upon his allegedly being denied legal supplies for four months from March through June 2013.
First, plaintiff maintains that he was unable to file this action until September 5, 2013, and No. 2:13-cv-01740-JAD-VCF until September 23, 2013. As to this action, an alleged two month delay in being able to file a lawsuit until September 2013 regarding an alleged denial of legal supplies in March through June 2013 does not present actual injury to support a first amendment claim. The alleged delay clearly has not caused this action to be time-barred or resulted in other substantial injury. Plaintiff cannot bootstrap an alleged brief and nonprejudicial delay in being able to pursue the first amendment claim itself as demonstrating actual injury to support a first amendment claim seeking damages. Similarly, No. 2:13-cv-01740 concerns alleged events occurring on and after February 13, 2013, and the alleged delay has not resulted in that action being dismissed on the basis of untimeliness. Plaintiff has filed a total of ten actions in this court from September 5, 2013, through May 1, 2014, with numerous filings within multiple actions. It does not appear that his ability to pursue claims regarding his confinement has sustained significant impairment, much less actual injury.
Second, plaintiff alleges that his counsel on his direct criminal appeal "needed statements and review of prelim[inary] transcripts from plaintiff which plaintiff could not relay over the phone therefore requiring professional legal correspondence." As with plaintiff's allegation in the original complaint that he was "hendered" in communicating with counsel, this sparse allegation does not "establish actual injury to ...