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Peck v. State

United States District Court, D. Nevada

July 5, 2018

FRANK M. PECK, Plaintiff,
v.
STATE OF NEVADA, ex rel. et al., Defendants.

          SCREENING ORDER AND ORDER FOR DEFENDANTS TO RESPOND TO MOTION FOR PRELIMINARY INJUNCTION

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE.

         Frank M. Peck is a prisoner in the custody of the Nevada Department of Corrections. Peck has submitted a civil rights complaint under 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis, a motion for a temporary restraining order, and a motion for preliminary injunction. ECF No. 1-1, 1, 4, 5. The matter of the filing fee shall be temporarily deferred. I now screen Peck's civil rights complaint under 28 U.S.C. § 1915A.

         I. SCREENING STANDARD

         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. 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. 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. West v. Atkins, 487 U.S. 42, 48 (1988).

         In addition to the screening requirements under § 1915A, under 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. 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. 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. 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 construes them in the light most favorable to the plaintiff. 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. 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 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). Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

         II. SCREENING OF COMPLAINT

         In the complaint, Peck sues multiple defendants for events occurring at High Desert State Prison (“HDSP”). ECF No. 1-1 at 1. Peck sues: the State of Nevada, ex rel.; the Nevada Department of Corrections (“NDOC”); Prison Commissioners; Brian Sandoval, Governor; Barbara Cegavski, Secretary of State; Adam Laxalt, Attorney General; James Dzurenda, Director of Prisons; Brian Williams, HDSP Warden; Jennifer Nash, Associate Warden; Perry Russell, Associate Warden; T. Tiernes, Acting Assistant Warden; Ennis Wright, Case Worker;[1] Jaques Graham, Law Library Supervisor; Dwaine Wilson, Food Service Manager; Frank A Toddre, Deputy Attorney General; Jerry A, Wiese, District Court Judge; Sergeant Alexis Lonzano; Sergeant Julie Matousec; Sergeant Dugan; Officer Joel Queroz; unknown number of Roe Defendants in Count I; and, an unknown number of Doe Defendants in Count V.[2] Id. at 3-7.

         Peck alleges multiple causes of action in Counts I through VI. Id. at 8-17. In Count I, Peck alleges a violation of his right to access the courts. Id. at 8. In Count II, Peck alleges a violation of due process and retaliation in violation of the First Amendment. Id. at 11. In Count III, Peck alleges violation of his right to access the courts. Id. at 13. In Count IV, Peck alleges violation of his right to due process and equal protection under the Fourteenth Amendment and his right of access to the courts. Id. at 14. In Count V, Peck alleges equal protection violations in violation of the Fourteenth Amendment and deliberate indifference to safety and medical needs in violation of the Eighth Amendment. Id. at 16. In Count VI, Peck alleges violation of his right to access the courts. Id. at 17. Peck seeks compensatory and punitive damages as well as injunctive and declaratory relief. Id. at 20.

         A. Suing Improper Defendants and Attempted Relitigation of State Court Judgments

         First, I will address two issues that arise throughout the complaint: suing improper defendants or those who are immune from suit and attempting to relitigate state court judgments.

         Peck names the State of Nevada, ex rel., NDOC, and the [Board of] Prison Commissioners as defendants.

         I dismiss with prejudice all claims against defendant State of Nevada ex rel. as amendment would be futile. Peck cannot assert claims under 42 U.S.C. § 1983 or state law against the State of Nevada based on Eleventh Amendment sovereign immunity. Brooks v. Sulphur Springs Valley Elec. Co-op., 951 F.2d 1050, 1053 (9th Cir. 1991) (holding that “[t]he Eleventh Amendment prohibits federal courts from hearing suits brought against an unconsenting state” and that “[t]he Eleventh Amendment's jurisdictional bar covers suits naming state agencies and departments as defendants, and applies whether the relief sought is legal or equitable in nature”); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (holding that states are not persons for purposes of § 1983); see NRS § 41.031(3) (stating that the State of Nevada does not waive its Eleventh Amendment immunity). The Ninth Circuit has explicitly held that 28 U.S.C. § 1367, the supplemental jurisdiction statute, “does not abrogate state sovereign immunity for supplemental state law claims.” Stanley v. Trustees of California State Univ., 433 F.3d 1129, 1133-34 (9th Cir. 2006).

         I also dismiss with prejudice all claims against NDOC as amendment would be futile. NDOC is an agency of the State of Nevada and is not a “person” for purposes of 42 U.S.C. § 1983. Doe v. Lawrence Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 1997); Black v. Nevada Dep't of Corr., 2:09-cv-2343-PMP-LRL, 2010 WL 2545760, *2 (D. Nev. June 21, 2010).

         I likewise dismiss with prejudice all claims against the Board of Prison Commissioners as amendment would be futile. The Nevada Board of Prison Commissioners is an arm of the State of Nevada. Ruley v. Nevada Bd. of Prison Comm'rs, 628 F.Supp. 108, 110 (D. Nev. 1986). A governmental agency that is the arm of the State is not a person for purposes of § 1983. Howlett By & Through Howlett v. Rose, 496 U.S. 356, 365 (1990).

         Additionally, in multiple places in the complaint Peck contends that the defendants engaged in fraud to secure a state court judgment. Under the Rooker-Feldman doctrine, “a federal district court does not have subject matter jurisdiction to hear a direct appeal from the final judgment of a state court. The United States Supreme Court is the only federal court with jurisdiction to hear such an appeal.” Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). Additionally, a federal district court may not decide any issue that is a de facto appeal from a judicial decision from a state court or any issue raised in a suit that is “inextricably intertwined” with an issue resolved by a state court in its judicial decision. Id. at 1158. “A party disappointed by a decision of a state court may seek reversal of that decision by appealing to a higher state court.” Id. at 1155. “A party disappointed by a decision of the highest state court in which a decision may be had may seek reversal of that decision by appealing to the United States Supreme Court.” Id. “In neither case may the disappointed party appeal to a federal district court, even if a federal question is present or if there is diversity of citizenship between the parties.” Id. To the extent that Peck is attempting to relitigate those judgments or any issues resolved by a state court in its judgment, I dismiss those claims with prejudice as amendment would be futile.

         B. Count I - Right to Access the Courts

         1. Alleged Facts

         Peck alleges the following facts. Defendants Sandoval, Cegavski, Laxalt, Dzurenda, and Williams all personally approved, enacted, or implemented the recently amended AR 740.[3] ECF No. 1-1 at 8. AR 740 unreasonably restricts legal claims, through a variety of mechanisms, and also effectively renders the grievance process unavailable. Id. Kites are required as prerequisite for filing informal grievances but there are no set times for answering kites by staff. Id. Staff fail to answer kites, but a kite response is required as an attachment to an informal grievance, and informal grievances are rejected based on lack of such attachment, making the grievance process unavailable and foreclosing review of the issues raised. Id. Further, AR 740 prevents raising all but four issues per four weeks. Id. at 9. AR 740 requires informal grievances to be submitted within 30 days for tort and civil rights claims, and within 10 days for other claims, but only allows one grievance per seven-day period, and leaves any other issues excluded by time limitations. Id.

         The following is an example of how AR 740's limitations foreclose the possibility of administrative and legal relief on all issues. On December 12, 2017, Peck was using the law library for his single weekly session when officers forced everyone to leave all materials behind and go outside. Id. This event created several different grievable issues requiring different grievances, including: 1) missing legal documents, caused by defendant Dugan; 2) loss of session research; 3) threats made by defendant Graham; 4) refusal to sell research in a font big enough for Peck to comfortably read; 5) library overcrowding with 35-plus inmates. Id. Additionally, 6) on December 20, 2017, defendant Graham “lost” Peck's caselaw request; 7) NDOC refused to clean prison laundry for three weeks during the holidays; and 8) on December 22, 2017 medical staff told Peck his seizure medication had run out and he would not get a refill until January. Id. Peck was forced to choose which of the above rights to pursue, both through administrative resolution with the prison and through litigation, as exhausting administrative remedies is a prerequisite to bringing a federal civil rights claim under the Prison Litigation Reform Act.[4] Id.

         Defendant Sandoval signed legislation prohibiting inmates from accessing public records, denying Peck access to records necessary for litigation. Id. at 10. Defendant Cegavski returned Peck's freedom of information act request unanswered, denying Peck access to documents needed for civil rights litigation. Id.

         Around the same time as AR 740 was amended, the defendants stopped selling carbon paper used to make copies of handwritten documents, released a biased mediation video, and also refused to copy documentary evidence relevant to grievances, including declarations by and for other inmates. Id. at 8. Defendants Nash and Graham made false sworn statements and refused to allow Peck to copy documents proving that claim. Id. at 10. An unknown number of Roe Defendants[5] refused to copy documentary evidence, causing the statute of limitations to expire before Peck could file issues in state and federal habeas petitions and claims for civil rights violations. Id. Defendants Nash and Russell intentionally and permanently lost staff misconduct complaints, along with attached supporting documentation. Id.

         The defendants refused to allow exhaustion of grievances on the issues raised in this complaint. Id. at 8. Defendants Nash, Russell, Tiernes, and Graham are training staff to defeat inmate attempts at exhaustion through fraud. Id.

         Defendant Graham tampered with evidence and exhibits in completed pleadings for state case A-16-743859. Id. Defendants in federal civil rights case 2:12-cv-01495-JAD-PAL defrauded the court by intentionally removing pages from Peck's complaint. Id. at 10.

         Defendant Graham maliciously reduced Peck's law library time by 50% since January 2017. Id. at 8. The reduction in access caused Peck to fail to bring specific litigation within the statute of limitations. Id.

         The above restrictions and improper acts caused Peck to fail to comply with procedural rules in civil rights and habeas litigation, thwarted Peck from bringing civil rights and habeas litigation within the statute of limitations, and has caused additional civil rights and habeas litigation to be abandoned. Id. at 8, 10.

         2. Relitigation of Other Cases

         In this Count, Peck attempts to relitigate cases decided in other courts. Peck alleges that defendant Graham tampered with evidence and exhibits in completed pleadings for state case A-16-743859. That claim was litigated before the state trial court, and this court has no jurisdiction to hear it. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). Peck also alleges that the defendants in federal civil rights case 2:12-cv-01495-JAD-PAL defrauded the court by intentionally removing pages from Peck's complaint. Any appealable issue in that case is properly brought before the Ninth Circuit Court of Appeals, not this court.

         3. Access to the Courts

         Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). This right “requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). This right, however, “guarantees no particular methodology but rather the conferral of a capability-the capability of bringing contemplated challenges to sentences or conditions of confinement before the courts.” Lewis, 518 U.S. at 356. It is this “capability, rather than the capability of turning pages in a law library, that is the touchstone” of the right of access to the courts. Id. at 356-57.

         To establish a violation of the right of access to the courts, a prisoner must establish that he or she has suffered an actual injury, a jurisdictional requirement that flows from the standing doctrine and may not be waived. Id. at 349. An actual injury is “actual prejudice with respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to present a claim.” Id. at 348. Delays in providing legal materials or assistance that result in actual injury are “not of constitutional significance” if “they are the product of prison regulations reasonably related to legitimate penological interests.” Id. at 362. The right of access to the courts is limited to non-frivolous direct criminal appeals, habeas corpus proceedings, and § 1983 actions. Id. at 353 n.3, 354-55.

         a. AR 740

         AR 740 was amended in September 2017, and requires inmates generally to “resolve grievable issues through discussion with staff whose duties fall within the issue prior to initiating the grievance process . . . [and] Inmates are encouraged to use a kite to bring issues to the attention of staff.” AR 740.04(1). If the issue is not resolved, then “[t]he inmate shall file an informal grievance within…one (1) month if the issue involves personal property damage or loss, personal injury, medical claims or any other tort claims, including civil rights claims . . . [and within] ten (10) days if the issue involves any other issues within the authority and control of the Department including, but not limited to, classification, disciplinary, mail and correspondence, religious items, and food.” AR 740.05(4)(A) and (B). “All documentation and factual allegations available to the inmate must be submitted at this [informal] level with the grievance.” AR 740.05(5)(A). “Failure by the inmate to submit a proper Informal Grievance form to the Grievance Coordinator or designated employee in their absence, within the time frame noted in 740.05, number 4, shall constitute abandonment of the inmate's grievance at this, and all subsequent levels . . . .” AR 740(8). “The grievance response Form DOC-3098 will note that the inmate exceeded the timeframe and no action will be taken . . . .” AR 740(8)(B).

         Peck states a colorable claim of denial of access to the courts based on the amended AR 740. Peck's allegations show he is unable to grieve all the issues he wishes to pursue in civil rights and habeas litigation due to the restrictions in AR 740 to one grievance per week and one issue per grievance. Administrative exhaustion through the grievance process is a requirement for relief in federal civil rights claims. Defendants Sandoval, Cegavski, Laxalt, Dzurenda, and Williams all personally approved, enacted, or implemented the amendment to AR 740. Therefore, the portion of Count I alleging violation of access to the courts due to the restrictions in AR 740 shall proceed against defendants Sandoval, Cegavski, Laxalt, Dzurenda, and Williams.

         b. Public Records

         Peck states a colorable claim of the denial of access to the courts based on allegations that he was not allowed to access public records required for his civil rights and habeas claims. Based on the allegations, defendant Sandoval signed into effect a law prohibiting inmate access to public records, and defendant Cegavski returned Peck's public records request unanswered. Therefore, the portion of Count I alleging violation of access to the courts due to restrictions on access to public records shall proceed against defendants Sandoval and Cegavski.

         c. Copy Claims

         Peck states a colorable claim of denial of access to the courts based on refusal to copy documentary evidence. Based on the allegations, the defendants stopped selling carbon paper used to make copies of handwritten documents. An unknown number of Roe Defendants and defendants Nash and Graham refused to copy documentary evidence relevant to grievances, including declarations by and for other inmates, which caused the statute of limitations to expire before Peck was able to file issues in state and federal habeas petitions and claims for civil rights violations. Therefore, the portion of Count I alleging violation of access to the courts due to refusal to copy evidence will proceed against defendants Nash, Graham, and an unknown number of Roe Defendants when Peck learns their true identities.

         d. Grievance Claims

         Peck states a colorable claim of denial of access to the courts based on inability to exhaust administrative grievances. Based on the allegations, staff are being trained by defendants Nash, Russell, Tiernes, and Graham to defeat inmate attempts at exhaustion through fraud. Staff allegedly refused to allow exhaustion of Peck's grievances on issues raised in this complaint. Defendants Nash and Russell intentionally and permanently disposed of Peck's staff misconduct complaints, along with attached supporting documentation. Therefore, the portion of Count I alleging violation of access to the courts based on training staff to fraudulently defeat Peck's attempts at exhaustion shall proceed against defendants Nash, Russell, Tiernes, and Graham.

         e. Law Library Claims

         Peck states a colorable claim of denial of access to the courts based on the reduction in his law library time. Defendant Graham allegedly reduced Peck's law library time by 50% since January 2017. This reduction in access caused Peck to fail to bring specific litigation within the limitations period. Therefore, the portion of Count I alleging a violation of the right of access to the courts based on a reduction in law library time shall proceed against defendant Graham.

         C. Count II - Due Process and Retaliation

         Peck alleges the following facts. Defendants Sandoval, Laxalt, and Dzurenda personally approved the AR 516 “Level System”[6] that is both arbitrarily applied and used as a retaliatory tool through false disciplinary charges against Peck. ECF No. 1-1 at 11. Peck was retaliated against for his use of the prison grievance system and filing civil rights lawsuits. Id. at 12. Peck has spent a year in Level 3 punitive segregation (not including 15 days in the hole) over two verbal reprimands. Id. AR 516 does not require due process or a disciplinary infraction for a level demotion. Id.

         Defendant Williams upheld retaliatory OIC #423470, falsely written by defendant Russell. Id. at 11. Defendants Nash and Graham caused retaliatory OIC #408880, written by defendant Matousec, where Peck was found not guilty. Id. On June 15, 2017, Nash and Graham refused to copy documentary evidence in state case A-16-743859. Id. Defendant Wilson falsely wrote OIC #416942, causing Peck to be held in the hole (segregation) from December 1, 2016 to December 15, 2016; Peck was found not guilty on December 7, 2016. Id. This false disciplinary report also cost Peck his opportunity for a pardon in 2018. Id. Graham falsely wrote OIC #419330; Peck was found not guilty of Graham's charges but was found guilty of disobedience by defendant Lozano despite no order cited as being disobeyed. Id.

         On December 7, 2017, defendants Wright and Queroz wrote a false OIC #436405 MJ-57 for refusal to move to another cell. Id. Peck had not been told he was to move and was “in a meeting with the AG at the time.” Id. On January 1, 2018, Queroz falsely told hearing officer Lozano that he had told Peck to move cells and Peck refused. Id. Peck was falsely convicted on January 12, 2018, causing him to spend six more months in Level 3. Id. All of these actions negatively impacted Peck's ability to get parole. Id.

         Peck possesses documentary evidence that Graham is retaliating against him by providing other inmates with more legal access than Peck, and that the defendants refuse to make copies of evidence against themselves. Id. Peck lists a number of grievances that defendant Russell “killed” by rejecting them for a variety of false reasons in retaliation for Peck filing grievances and litigation. Id. at 12. Peck was retaliated against in 2009-2010 by being transferred ...


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