United States District Court, D. Nevada
who is a prisoner in the custody of the Nevada Department of
Corrections (“NDOC”), has submitted a civil
rights complaint pursuant to 42 U.S.C. § 1983 and has
filed an application to proceed in forma pauperis.
(ECF No. 1, 1-1). The Court now addresses the application to
proceed in forma pauperis and screens
Plaintiff's civil rights complaint pursuant to 28 U.S.C.
IN FORMA PAUPERIS APPLICATION
the Court is Plaintiff's application to proceed in
forma pauperis. (ECF No. 1). 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 COMPLAINT
complaint, Plaintiff sues Defendants Senator Harry Reid,
Governor Brian Sandoval, and Inspector General John Doe in
charge of PREA management for events that took place
while Plaintiff was incarcerated at the Southern Desert
Correctional Center (“SDCC”). (ECF No. 1-1 at
1-2). Plaintiff alleges two counts and seeks monetary damages
and injunctive relief. (Id. at 12, 18).
complaint, Plaintiff alleges that he filed several PREA
complaints against several correctional officers and was
retaliated against in return. (See Id. at 3-14).
Prison officials responded to Plaintiff's PREA complaints
by stating that Plaintiff's complaints were
“referred to the inspector general's office for
investigation.” (Id. at 5, 7-10, 12). However,
the inspector general's office did nothing with
Plaintiff's PREA complaints. (Id. at 8).
Plaintiff's due process and equal protection rights were
violated because Senator Reid and Governor Sandoval failed to
ensure that PREA, a federal program, was operated properly by
state officials. (Id. at 10-11). The inspector
general's office failed to supervise and train NDOC staff
to ensure that prison officials were informed in taking
action if a prisoner filed a PREA complaint. (Id. at
13). Senator Reid and Governor Sandoval failed to train and
supervise. (Id. at 14). Plaintiff suffered harm as a
initial matter, the Court notes that Plaintiff has another
pending lawsuit, Farmer-Kiefe v. Reid et al.,
2:16-cv-02094-APG-VCF, where he sues the correctional
officers and wardens involved with his PREA
complaints. The instant complaint appears to focus
solely on the liability of Senator Reid, Governor Sandoval,
and Inspector General John Doe.
Court finds that Plaintiff fails to allege a colorable claim
against Senator Reid, Governor Sandoval, and Inspector
General John Doe. First, PREA was enacted to study the
problem of prison rape and to authorize the reporting of
incidents of rape but nothing in the Act creates a private
right of action enforceable under § 1983. See Law v.
Whitson, 2:08-CV-0291-SPK, 2009 WL 5029564, *4 (E.D.
Cal. Dec. 15, 2009); Trost v. Cox,
3:14-CV-611-MMD-WGC, ECF ...