United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE
FACTS AND PRECEDURAL HISTORY
Devell Moore is a prisoner in the custody of the Nevada
Department of Corrections ("NDOC") at Lovelock
Correctional Center. He has sued several Defendants in this
Court under 42 U.S.C. § 1983. He lists several claims
arising out of an argument one Defendant had with his
cellmate that ultimately resulted in the Defendant using
racial epithets against Plaintiff and holding Plaintiff in
his cell when other inmates were not so restricted based on
Plaintiffs race. The Court now screens the Complaint under 28
U.S.C. § 1915A.
courts must screen any case in which a prisoner seeks redress
from a governmental entity or its officers or employees. 28
U.S.C. § l9l5A(a). The court must identify cognizable
claims and dismiss claims that are frivolous, malicious, fail
to state a claim, or seek monetary relief from an immune
defendant. See 28 U.S.C. § l9l5A(b). This
includes claims based on fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
Also, when a prisoner seeks to proceed without prepayment of
fees, a court must dismiss if "the allegation of poverty
is untrue." 28 U.S.C. § 1915(e)(2)(A).
screening claims for failure to state a claim, a court uses
the same standards as under Rule 12(b)(6). Wilhelm v.
Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Federal
Rule of Civil Procedure 8(a)(2) requires "a short and
plain statement of the claim showing that the pleader is
entitled to relief in order to "give the defendant fair
notice of what the ... claim is and the grounds upon which it
rests." Conley v. Gibson, 355 U.S. 41, 47
(1957). A motion to dismiss under Rule 12(b)(6) tests the
complaint's sufficiency, see N. Star Int'l v.
Ariz. Corp. Comm 'n, 720 F.2d 578, 581 (9th Cir.
1983), and dismissal is appropriate only when the complaint
does not give the defendant fair notice of a legally
cognizable claim and the grounds on which it rests. See
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
treats factual allegations as true and construes them in the
light most favorable to the plaintiff, NL Indus., Inc. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986), but does not
accept as true "legal conclusions . . . cast in the form
of factual allegations." Paulsen v. CNF Inc.,
559 F.3d 1061, 1071 (9th Cir. 2009). A plaintiff must plead
facts pertaining to his case making a violation
"plausible, " not just "possible."
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Twombly, 550 U.S. at 556) ("A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.").
That is, a plaintiff must not only specify or imply a
cognizable legal theory (Conley review), he must
also allege the facts of his case so that the court can
determine whether he has any basis for relief under the legal
theory he has specified or implied, assuming the facts are as
he alleges (Twombly-Iqbal review).
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However,
material which is properly submitted as part of the complaint
may be considered on a motion to dismiss." Hal Roach
Studios, Inc. v. RichardFeiner & Co., 896 F.2d 1542,
1555 n.19 (9th Cir. 1990) (citation omitted). Similarly,
"documents whose contents are alleged in a complaint and
whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered in
ruling on a Rule 12(b)(6) motion to dismiss" without
converting the motion to dismiss into a motion for summary
judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th
Cir. 1994). Also, under Federal Rule of Evidence 201, a court
may take judicial notice of "matters of public
record" if not "subject to reasonable
dispute." United States v. Corinthian Colls.,
655 F.3d 984, 999 (9th Cir. 2011). Otherwise, if the district
court considers materials outside of the pleadings, the
motion to dismiss is converted into a motion for summary
judgment. SeeArpin v. Santa Clara Valley Transp.
Agency, 261 F.3d 912, 925 (9th Cir. 2001).
may be dismissed as untimely when the running of the statute
of limitations is apparent on the face of the complaint.
Von Saher v. Norton Simon Museum of Art at Pasadena,
592 F.3d 954, 969 (9th Cir. 2010). The limitations period for
§ 1983 actions in Nevada is two years. Perez v.
Seevers, 869 F.2d 425, 426 (9th Cir. 1989). Plaintiff
alleges the events at issue occurred on November 14, 2013,
that he filed a prison grievance on that date, and that the
grievance was denied. Prisoner complaints under § 1983
are tolled during administrative exhaustion. Brown v.
Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005). Assuming
Plaintiff exhausted the grievance procedures (a prerequisite
to filing suit), the longest the claims could have been
tolled based on NDOC's grievance procedures is 160 days.
(NDOC Admin. Reg. 740.05(12) (45 days to respond to informal
grievances and 5 days to appeal); id. 740.06(4) (45
days to respond to first level grievances and 5 days to
appeal); id. 740.07(3) (60 days to respond to second
level grievances)). If Plaintiff failed to receive a timely
response at any level, the claims would have been immediately
exhausted. Andres v. Marshall, 867 F.3d 1076, 1079
(9th Cir. 2017). Therefore, the statute of limitations on
Plaintiffs claims ran no later than two years and 160 days
after the date Plaintiff alleges he filed his grievance,
i.e., on April 22, 2016. Plaintiff did not file the Complaint
until March 28, 2017.
HEREBY ORDERED that the Application to Proceed in Forma
Pauperis (ECF No. 4) is DENIED as moot.
FURTHER ORDERED that the Clerk shall FILE the Complaint (ECF
FURTHER ORDERED that the Complaint is DISMISSED for failure
to state a claim, without leave to ...