United States District Court, D. Nevada
SCREENING ORDER ON AMENDED COMPLAINT
who is a prisoner in the custody of the Nevada Department of
Corrections (“NDOC”), has submitted an amended
civil rights complaint pursuant to 42 U.S.C. § 1983 and
has filed two applications to proceed in forma
pauperis, a motion to amend complaint, a motion of
inquiry, and a motion for appointment of counsel. (ECF No. 4,
5, 5-1, 8, 9, 10, 11). The Court now addresses the
applications to proceed in forma pauperis and
screens Plaintiff's amended civil rights complaint
pursuant to 28 U.S.C. § 1915A.
IN FORMA PAUPERIS APPLICATION
the Court is Plaintiff's application to proceed in
forma pauperis. (ECF No. 10). Based on the information
regarding Plaintiff's financial status, the Court finds
that Plaintiff is not able to pay an initial installment
payment toward the full filing fee pursuant to 28 U.S.C.
§ 1915. Plaintiff will, however, be required to make
monthly payments toward the full $350.00 filing fee when he
has funds available.
courts must conduct a preliminary screening in any case in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity. See 28
U.S.C. § 1915A(a). In its review, the court must
identify any cognizable claims and dismiss any claims that
are frivolous, malicious, fail to state a claim upon which
relief may be granted or seek monetary relief from a
defendant who is immune from such relief. See 28
U.S.C. § 1915A(b)(1), (2). Pro se pleadings,
however, must be liberally construed. Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1990). To state a claim under 42 U.S.C. § 1983, a
plaintiff must allege two essential elements: (1) the
violation of a right secured by the Constitution or laws of
the United States, and (2) that the alleged violation was
committed by a person acting under color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988).
addition to the screening requirements under § 1915A,
pursuant to the Prison Litigation Reform Act (PLRA), a
federal court must dismiss a prisoner's claim, if
“the allegation of poverty is untrue, ” or if the
action “is frivolous or malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a
complaint for failure to state a claim upon which relief can
be granted is provided for in Federal Rule of Civil Procedure
12(b)(6), and the court applies the same standard under
§ 1915 when reviewing the adequacy of a complaint or an
amended complaint. When a court dismisses a complaint under
§ 1915(e), the plaintiff should be given leave to amend
the complaint with directions as to curing its deficiencies,
unless it is clear from the face of the complaint that the
deficiencies could not be cured by amendment. See Cato v.
United States, 70 F.3d 1103, 1106 (9th Cir. 1995).
under Rule 12(b)(6) is essentially a ruling on a question of
law. See Chappel v. Lab. Corp. of America, 232 F.3d
719, 723 (9th Cir. 2000). Dismissal for failure to state a
claim is proper only if it is clear that the plaintiff cannot
prove any set of facts in support of the claim that would
entitle him or her to relief. See Morley v. Walker,
175 F.3d 756, 759 (9th Cir. 1999). In making this
determination, the court takes as true all allegations of
material fact stated in the complaint, and the court
construes them in the light most favorable to the plaintiff.
See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th
Cir. 1996). Allegations of a pro se complainant are
held to less stringent standards than formal pleadings
drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5,
9 (1980). While the standard under Rule 12(b)(6) does not
require detailed factual allegations, a plaintiff must
provide more than mere labels and conclusions. Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
formulaic recitation of the elements of a cause of action is
a reviewing court should “begin by identifying
pleadings [allegations] that, because they are no more than
mere conclusions, are not entitled to the assumption of
truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009). “While legal conclusions can provide the
framework of a complaint, they must be supported with factual
allegations.” Id. “When there are
well-pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise
to an entitlement to relief.” Id.
“Determining whether a complaint states a plausible
claim for relief . . . [is] a context-specific task that
requires the reviewing court to draw on its judicial
experience and common sense.” Id.
all or part of a complaint filed by a prisoner may therefore
be dismissed sua sponte if the prisoner's claims
lack an arguable basis either in law or in fact. This
includes claims based on legal conclusions that are untenable
(e.g., claims against defendants who are immune from suit or
claims of infringement of a legal interest which clearly does
not exist), as well as claims based on fanciful factual
allegations (e.g., fantastic or delusional scenarios).
See Neitzke v. Williams, 490 U.S. 319, 327-28
(1989); see also McKeever v. Block, 932 F.2d 795,
798 (9th Cir. 1991).
SCREENING OF AMENDED COMPLAINT
amended complaint, Plaintiff sues multiple defendants for
events that took place while Plaintiff was incarcerated at
High Desert State Prison (“HDSP”). (ECF No. 5-1
at 1). Plaintiff sues Defendants State of Nevada, the NDOC,
NDOC Director James Dzurenda, and Reentry Coordinator Pardee.
(Id. at 1-2). Plaintiff alleges three counts and
seeks monetary damages. (Id. at 6, 9).
amended complaint alleges the following: On April 12, 2016,
Plaintiff entered HDSP and was not permitted to work or
program because he needed a social security card.
(Id. at 3). By not working, Plaintiff lost work
credits up to six days a month. (Id.) Plaintiff
kited Pardee for the proper forms but did not receive an
answer or an application. (Id.) This prolonged
Plaintiff's imprisonment due to the loss of work time
credits. (Id.) Pardee's actions have caused
Plaintiff to worry about his release date. (Id. at
5). Plaintiff alleges cruel and unusual punishment (Count I),
mental anguish (Count II), and libel (Count III).
(Id. at 4-6).
Court dismisses the complaint in its entirety because
Plaintiff fails to state any cognizable claim based on the
allegations in his complaint. First, Plaintiff fails to state
a claim for libel. Libel, a form of defamation, requires a
false and defamatory statement. See Flowers v.
Carville, 292 F.Supp.2d 1225, 1232 (D. Nev. 2003),
aff'd, 161 F.App'x 697 (9th Cir. 2006).
There are no allegations of false statements in this case.
to the extent that Plaintiff is attempting to allege a due
process violation based on his alleged right to work in
prison, this claim also fails. The U.S. Supreme Court has
held that the U.S. Constitution “does not guarantee
good-time credit for satisfactory behavior while in
prison.” Wolff v. McDonnell, 418 U.S. 539, 557
(1974). The Constitution also does not grant a prisoner an
independent right to prison employment. Collins v.
Palczewski, 841 F.Supp. 333, 336 (D. Nev. 1993).
Moreover, Nevada's statutes and prison administrative
regulations do not create an independent liberty right ...