United States District Court, D. Nevada
Howard J. Ernest, Plaintiff,
State of Nevada, Defendants.
P. GORDON, UNITED STATES DISTRICT JUDGE
Howard Ernest is a prisoner in the custody of the Nevada
Department of Corrections (“NDOC”). He has
submitted a civil rights complaint under 42 U.S.C. §
1983 and has filed an application to proceed in forma
pauperis. ECF No. 1, 1-1. I now screen the 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. See 28
U.S.C. § 1915A(a). 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,
the Prison Litigation Reform Act (PLRA) requires a federal
court to 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 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 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
sues multiple defendants for events that took place while he
was incarcerated by the NDOC. ECF No. 1-1 at 1-3. He sues the
State of Nevada, the Nevada Department of Corrections, the
Offender Management Division, Warden Brian Williams, and
James Dzurenda. Id. Ernest alleges five counts and
seeks monetary damages. Id. at 8, 11.
five counts are based on five different convictions and
sentences. Id. at 4-8. For each sentence, Ernest
alleges that the Nevada Department of Corrections did not
apply NRS § 209.4465(7)(b) to his minimum term.
Id. Section 209.4465(7)(b) concerns the application
of statutory credits to determine the date when a person
becomes eligible for parole. For each sentence, Ernest
alleges that the failure to apply NRS § 209.4465(7)(b)
directly caused him to be in prison longer. Id. He
alleges this violated his rights to due process and equal
Ernest alleges no facts to indicate that the Equal Protection
Clause applies, I construe his claims as Fourteenth Amendment
due process claims only.
must determine if Ernest's claim is barred by Heck v.
Humphrey, 512 U.S. 477 (1994). In Heck, the
Supreme Court held that “in order to recover damages
for [an] allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a
§ 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal
authorized to make such determination, or called into
question by a federal court's issuance of a writ of
habeas corpus, 28 U.S.C. § 2254.” Id. at
486-87. “A claim for damages bearing that relationship
to a conviction or sentence that has not been . . .
invalidated is not cognizable under § 1983.”
Id. at 487. Thus, when a state prisoner seeks
damages in a § 1983 suit, the district court must
consider whether a judgment in favor of the plaintiff would
necessarily imply the invalidity of the duration of his
confinement; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the period of
confinement has already been invalidated. Id. A
prisoner usually may not use § 1983 to challenge the
very fact ...