United States District Court, D. Nevada
FRANK M. PECK, Plaintiff,
STATE OF NEVADA, ex rel. et al., Defendants.
SCREENING ORDER AND ORDER FOR DEFENDANTS TO RESPOND
TO MOTION FOR PRELIMINARY INJUNCTION
P. GORDON, UNITED STATES DISTRICT JUDGE.
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.
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
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).
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
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 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
SCREENING OF COMPLAINT
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; 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
Id. at 3-7.
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.
Suing Improper Defendants and Attempted Relitigation of State
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.
names the State of Nevada, ex rel., NDOC, and the
[Board of] Prison Commissioners as defendants.
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).
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).
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).
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.
Count I - Right to Access the Courts
alleges the following facts. Defendants Sandoval, Cegavski,
Laxalt, Dzurenda, and Williams all personally approved,
enacted, or implemented the recently amended AR
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.
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. Id.
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.
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 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
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.
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.
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.
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.
Relitigation of Other Cases
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.
Access to the Courts
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.
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.
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).
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.
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.
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.
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
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
Count II - Due Process and Retaliation
alleges the following facts. Defendants Sandoval, Laxalt, and
Dzurenda personally approved the AR 516 “Level
System” 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.
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.
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.
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