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Lepley v. State

United States District Court, D. Nevada

September 30, 2017

STATE OF NEVADA et al., Defendants.



         Order 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.[1] The Court now screens Plaintiff's civil rights complaint pursuant to 28 U.S.C. § 1915A and addresses his motions.


         Federal 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).

         In 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).

         Review 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 insufficient. Id.

         Additionally, 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.

         Finally, 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).


         In the 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.[3] (Id. at 2-4). Plaintiff alleges nine counts and seeks monetary damages and an order prohibiting lifetime supervision. (Id. at 11, 23).

         The 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. (Id.).

         The 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 ...

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