United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
Plaintiff, 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 to extend prison copy work limit, a
motion for appointment of counsel, two motions to extend
time, two motions for temporary restraining order, a motion
to file under seal, a motion for submission, a motion for
preliminary injunction, a motion to transport, and a motion
to oppose. (ECF No. 1, 6, 10, 11, 12, 14, 18, 20, 21, 24, 25,
26, 29). 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 and
addresses his motions.
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 at 2).
Plaintiff sues Defendants NDOC Director James Dzurenda,
Parole Board Commissioner Connie S. Bisbee, Parole
Commissioner Ed Gray Jr., Parole Commissioner Michael Keeler,
Parole Commissioner Lucille Monterde, Parole Board Executive
Secretary Darla Foley, Parole Board Secretary D. Barnard,
Warden Brian Williams, State of Nevada ex rel Nevada
Department of Corrections, Nevada Department of Parole Board
of Commissioners, and Department of Motor
Vehicles. (Id. at 2-4). Plaintiff alleges
nine counts and seeks monetary damages and an order
prohibiting lifetime supervision. (Id. at 11, 23).
Court has reviewed Plaintiff's complaint and is having
difficulty deciphering Plaintiff's allegations and
claims. (See ECF No. 1 at 2-24). From what the Court
can decipher, it appears that Plaintiff had a parole board
hearing on April 13, 2016. (Id. at 12). The parole
board members mentioned that plaintiff was “low risk
with a risk assessment of two points.” (Id.)
It appears that the parole board denied Plaintiff parole and
suggested that Plaintiff take a victim's impact empathy
course even though one was not offered at his prison.
(Id. at 13, 15). The parole board acknowledged that
Plaintiff had taken a sex offenders' treatment program
(“SOTP”). (Id. at 13). Plaintiff
appealed. (Id. at 16). If Plaintiff takes the
one-to-two year SOTP program, it would increase the length of
his incarceration. (Id. at 17). Additionally, at the
parole board hearing, Plaintiff learned that his conviction
required lifetime supervision pursuant to state statute.
(Id. at 12). According to Plaintiff, lifetime
supervision only applied to sex offenses committed on or
after July 1, 1997 and that he committed his crime on May 16,
1997. (Id. at 5). Plaintiff is disabled under the
American with Disabilities Act because he has HIV.
(Id. at 19). Unnamed prison officials prevented
Plaintiff from participating in work programs.
Court dismisses the complaint in its entirety, without
prejudice, and grants Plaintiff leave to amend. As drafted,
the Court is unable to decipher any colorable claims in the
complaint. Upon amendment, Plaintiff should follow the
directions in the form complaint and “describe ...