United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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, a
motion for appointment of counsel, and a motion for an
evidentiary hearing. (ECF No. 1-1, 10, 11, 12). The Court now
screens Plaintiff's 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 COMPLAINT
complaint, Plaintiff sues multiple defendants for events that
took place while Plaintiff was incarcerated at High Desert
State Prison (“HDSP”). (ECF No. 1-1 at 1).
Plaintiff sues Defendants State of Nevada, Nevada Department
of Corrections (“NDOC”), and Warden D.W. Neven.
(Id. at 2). Plaintiff alleges one count and seeks
$7, 000, 000 in monetary damages. (Id. at 4, 7).
complaint alleges the following: Neven and his delegates took
trade secrets, trade names, trademarks, logos, ideas, and
lyrics from albums that Plaintiff sent home to be
copyrighted. (Id. at 3). HDSP correctional officers
grabbed two of Plaintiff's envelopes marked
“don't open” from Plaintiff's door.
(Id.) Prison officials mailed one envelope to
Plaintiff's home but returned the other envelope to
Plaintiff opened. (Id.) Prison officials never gave
the opened envelope to the postmaster. (Id.) Prison
officials had picked up the second envelope from
Plaintiff's door and returned it to Plaintiff a day or
two later. (Id. at 4). Plaintiff alleges violations
of the right to privacy, the right to copyright protection
infringement, and the right to protection against plagiarism.
Court finds that Plaintiff fails to allege any colorable
claim based on the right to privacy, copyright protection
infringement, or plagiarism. With respect to Plaintiff's
privacy claim, the First Amendment permits prison officials
to visually inspect outgoing mail to determine whether it
contains contraband material which threatens prison security
or material threatening the safety of the recipient.
Witherow v. Paff, 52 F.3d 264, 266 (9th Cir. 1995).
As such, prison officials did not violate Plaintiff's
rights by opening Plaintiff's outgoing mail despite
Plaintiff's written admonishment of “don't
open.” Additionally, there are no allegations in the
complaint that support a copyright infringement or plagiarism
claim, as the Plaintiff has not alleged the ownership of a
copyrighted work or the copying of original elements of that
work. See Feist Publ'ns, Inc. v. Rural Tel. Serv.