United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
the Court is plaintiff Jorge Morales'
(“Morales”) First Amended Complaint
(“FAC”). (ECF No. 21.) The Court now re-screens
Morales' FAC pursuant to 28 U.S.C. § 1915A to
address defendant State of Nevada individually and recommends
that the State of Nevada be dismissed with prejudice.
1915 provides, in relevant part, that “the court shall
dismiss the case at any time if the court determines that ...
the action or appeal (i) is frivolous or malicious; (ii)
fails to state a claim upon which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. §
1915(e)(2)(B)(i)-(iii). Dismissal of a complaint for failure
to state a claim upon which relief may be granted is provided
for in Federal Rule of Civil Procedure 12(b)(6), and the
court applies the same standard when reviewing the adequacy
of a complaint under § 1915. Watison v. Carter,
668 F.3d 1108, 1112 (9th Cir. 2012).
Rule 12(b)(6), the court is to dismiss when the complaint
fails to “state a claim for relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Courts accept as true all well-pled
factual allegations, set aside legal conclusions, and verify
that the factual allegations state a plausible claim for
relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Although the complaint need not contain detailed factual
allegations, it must offer more than “a formulaic
recitation of the elements of a cause of action” and
“raise a right to relief above a speculative
level.” Twombly, 550 U.S. at 555.
review, the complaint is construed in the light most
favorable to the plaintiff. Chubb Custom Ins. Co. v.
Space Systems/Loral Inc., 710 F.3d 946, 956 (9th Cir.
2013). The court takes particular care when reviewing the
pleadings of a pro se plaintiff, as a more forgiving
standard applies to litigants not represented by counsel.
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir.
2014). In addition, a pro se plaintiff must be given
notice of the deficiencies of his or her complaint, and leave
to amend, unless the opportunity to amend would be futile.
Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.
1995). Despite this leniency, a district court may in its
discretion dismiss an in forma pauperis complaint if
the claim “lacks an arguable basis in either law or
fact.” Id. This includes claims based on
untenable legal conclusions (e.g., claims against defendants
who are immune from suit or claims of infringement of a legal
interest which clearly does not exist) or fanciful factual
allegations (e.g., fantastic or delusional scenarios).
Neitzke v. Williams, 490 U.S. 319, 328, 109 S.Ct.
1827, 1833, 104 L.Ed.2d 338 (1989).
DISCUSSION & ANALYSIS
is an inmate in the custody of the Nevada Department of
Corrections (“NDOC”) and is currently housed at
Northern Nevada Correction Center in Carson City, Nevada.
However, the events that gave rise to this complaint occurred
at Lovelock Correction Center (“LCC”). (ECF No.
21.) Morales submitted a civil rights complaint pursuant to
42 U.S.C. § 1983. (ECF No. 1, 1-1.) On April 2, 2018,
the Court screened Morales' complaint and determined that
the First Amendment Free Exercise claim, the Fourteenth
Amendment Equal Protection claim, the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”) claim,
and the Nevada State Law claims could proceed, while the
Religious Freedom Restoration Act claim was dismissed with
prejudice. (ECF No. 4.)
then submitted a FAC which reiterates the claims he was
permitted to proceed on from his original complaint. The FAC,
however, also adds eight new defendants and two new claims.
(ECF No. 21.) In the FAC, Morales sues E. K. McDaniel,
William Sandie, Tara Carpenter, Mark Sorci, James Dzurenda,
Brian Sandoval, Barbara Cegavske, James Stogner, Jane/John
Doe #1, Jane/John Doe #2, Jane/John Doe #3, and the State of
Nevada. (Id.) Morales alleges a First Amendment Free
Exercise claim, a First Amendment Equal Protection claim, a
RLUIPA claim, a First Amendment retaliation claim, and three
State law claims, and seeks declaratory, injunctive, and
monetary relief. (Id.)
gravamen of Morales' complaint is his displeasure with
Administrative Regulation (“AR”) 810, which he
claims is discriminatory and biased by only allowing certain
privileges to Native Americans. (Id., at 10.)
Morales claims that various Defendants played a role in
drafting, establishing, and enforcing AR 810, and that there
is no penological interest or purpose in providing certain
privileges to Native Americans while disallowing them to
individuals of other religions, such as his own Wiccan faith.
(Id.) Morales also alleges that he had religious
property confiscated and subsequently returned, only to have
it confiscated again by the same defendant as retaliation for
filing grievances. (Id.)
the court properly screened plaintiff's FAC and briefly
mentioned defendant State of Nevada it did not screen the
State of Nevada separately as a defendant in the screening
order (ECF No. 22). The Court recommends dismissal with
prejudice all claims against the State of Nevada, as
amendment would be futile. See Will v. Michigan Dep't
of State Police, 491 U.S. 58, 65 (1989) (holding that
states are not persons for purposes of § 1983).
Plaintiff can neither raise 42 U.S.C. § 1983 claims nor
state law claims against the State of Nevada based on
Eleventh Amendment sovereign immunity. See 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.n , 433
F.3d 1129, 1133-34 (9th Cir. 2006).
on the foregoing, the court recommends that defendant State
of Nevada be dismissed with prejudice. The parties are
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of
the Local Rules of Practice, the parties may file specific
written objections to this Report and Recommendation within
fourteen days of receipt. These objections should be entitled
“Objections to Magistrate Judge's Report and
Recommendation” and should be accompanied by points and
authorities for consideration by the District Court.
Report and Recommendation is not an appealable order and any
notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should
not be filed ...