United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
December 21, 2017, the Court dismissed this action with
prejudice based on Plaintiff's failure to comply with the
Court's Screening Order giving him thirty (30) days to
file an amended complaint. (ECF No. 7.) The Court's
Screening Order had been returned as undeliverable because
Plaintiff failed to file a notice of change of address as
required by LR IA 3-1. On January 10, 2018, Plaintiff filed a
notice of change of address (ECF No. 9) and a motion to
vacate judgment (“Motion”) (ECF No. 10).
Plaintiff asserts that he did not receive the Screening
Order, and only received the dismissal order on December 29,
2017, which prompted him to file the notice of change of
address. He also contends he was not aware of his obligation
to update the Court with his change of address. It is
Plaintiff's obligations to be familiar with the
Court's local rules and the procedural rules governing
his case. Nevertheless, the Court grants Plaintiff's
Motion under the circumstances here given Plaintiff's pro
se status, the fact that he timely acted to remedy his
failure to comply with LR IA 3-1 and the public policy
favoring disposition of cases on their merits.
therefore ordered that Plaintiff's motion to vacate
judgment (ECF No. 10) is granted. The dismissal order (ECF
No. 7) and judgment (ECF No. 8) are vacated. Plaintiff will
be given thirty (30) days from the date of this Order to file
an amended complaint to correct the deficiencies identified
in the Screening Order. Plaintiff should review the Screening
Order, a copy of which is attached, to ensure compliance with
the Screening Order.
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
and a motion for appointment of counsel. (ECF Nos. 1, 1-1,
1-2.) The matter of the filing fee will 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 multiple defendants for events that
took place while Plaintiff was incarcerated at the Warm
Springs Correctional Center (“WSCC”) and the
Lovelock Correctional Center (“LCC”). (ECF No.
1-1 at 1.) Plaintiff sues Defendants Medical Director R.
Aranas, Director of Nurses Patricia Smith, Registered Nurse
B. Borg, LCC Warden Baker, and Correctional Officer File.
(Id. at 2-3.) Plaintiff alleges three counts and
seeks injunctive and monetary relief. (Id. at 11.)