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. 1-2, 4). The matter of the filing fee shall be
temporarily deferred. The court now screens plaintiff's
civil rights complaint pursuant to 28 U.S.C. § 1915A.
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 state of Nevada and
caseworker Levitt for events that took place while plaintiff
was incarcerated at High Desert State Prison
(“HDSP”). (ECF No. 1-2 at 1-2). Plaintiff alleges
two counts and seeks monetary damages. (Id. at 5,
complaint alleges the following: On August 16, 2016,
plaintiff spoke to Levitt about one of his kites.
(Id. at 3). Specifically, plaintiff spoke to Levitt
about getting his financial certificate executed.
(Id.) Levitt responded that the financial
certificate form was not an NDOC form and, thus, Levitt could
not do anything to help plaintiff. (Id.) Plaintiff
tried to explain that the accounting department or inmate
services had to fill out the financial certificate and then
return it to plaintiff. (Id.) Levitt responded,
“Oh well.” (Id.) Levitt violated
plaintiff's civil rights by denying plaintiff a
“proper paper needed to proceed in forma
pauperis in his other cases which [were] under threat of
being dismissed.” (Id.) Levitt caused
plaintiff to worry about his other cases “which [have]
yet to be filed as they wait for a completed financial
certificate and could possibly be dismissed.”
(Id. at 4). Plaintiff alleges mental anguish (count
I) and due process in filing court documents (count II).
(Id. at 4-5).
court interprets the allegations as a claim for denial of
access to the courts. Prisoners have a constitutional right
of access to the courts. See Lewis v. Casey, 518
U.S. 343, 346 (1996). This right “requires prison
authorities to assist inmates in the preparation and filing
of meaningful legal papers by providing prisoners with
adequate law libraries or adequate assistance from persons
trained in the law.” Bounds v. Smith, 430 U.S.
817, 828 (1977). This right, however, “guarantees no
particular methodology but rather the conferral of a
capability-the capability of bringing contemplated challenges
to sentences or conditions of confinement before the
courts.” Lewis, 518 U.S. at 356. It is this
“capability, rather than the capability of turning
pages in a law library, that is the touchstone” of the
right of access to the courts. Id. at 356-57.
establish a violation of the right of access to the courts, a
prisoner must establish that he or she has suffered an actual
injury, a jurisdictional requirement that flows from the
standing doctrine and may not be waived. Id. at 349.
An “actual injury” is “actual prejudice
with respect to contemplated or existing litigation, such as
the inability to meet a filing deadline or to present a
claim.” Id. at 348. Delays in providing legal
materials or assistance that result in actual injury are
“not of constitutional significance” if
“they are the product of prison regulations reasonably
related to legitimate penological interests.”
Id. at 362. The right of access to the courts is
limited to non-frivolous direct criminal appeals, habeas
corpus proceedings, and § 1983 actions. Id. at
353 n.3, 354-55.
court finds that plaintiff fails to state a colorable claim
for denial of access to the courts. Plaintiff has not
established actual prejudice due to Levitt's inability to
help plaintiff acquire a financial certificate from the
accounting department or inmate services. Based on the
allegations, plaintiff had not initiated any lawsuits for the
cases he was awaiting financial certificates for. As a
result, plaintiff's cases were not at risk of being
“dismissed” for lack of a financial certificate
if plaintiff had never initiated a lawsuit. The court
dismisses this claim, without prejudice, with leave to amend.
is granted leave to file an amended complaint to cure the
deficiencies of the complaint. If plaintiff chooses to file
an amended complaint he is advised that an amended complaint
supersedes (replaces) the original complaint and, thus, the
amended complaint must be complete in itself. See Hal
Roach Studios, Inc. v. Richard Feiner & Co., Inc.,
896 F.2d 1542, 1546 (9th Cir. 1989) (holding that
“[t]he fact that a party was named in the original
complaint is irrelevant; an amended pleading supersedes the
original”); see also Lacey v. Maricopa Cnty.,
693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims
dismissed with prejudice, a plaintiff is not required to
reallege such claims in a subsequent amended complaint to
preserve them for appeal). Plaintiff's amended complaint
must contain all claims, defendants, and factual ...