United States District Court, D. Nevada
STEVEN D. ORR, Plaintiff,
STATE OF NEVADA, et al., Defendants.
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT JUDGE
who is a prisoner in the custody of the Nevada Department of
Corrections (“NDOC”), has
submitted a civil rights complaint pursuant to 42 U.S.C.
§ 1983 and has filed two applications to proceed in
forma pauperis, a motion to amend the complaint, and an
amended complaint (ECF No. 1, 3, 4, 4-1). The motion to amend
the complaint (ECF No. 4) is granted. The Court now screens
Plaintiff's amended civil rights complaint pursuant to 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). 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. 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,
pursuant to 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. 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 the court
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 therefore
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
First Amended Complaint (“FAC”), Plaintiff sues
multiple defendants for events that took place while he was
incarcerated by the Nevada Department of Corrections. (ECF
No. 4-1 at 1). He sues the Offender Management Department
(“O.M.D.”), John Doe O.M.D. supervisor, John Doe
O.M.D. timekeeper, Governor Jim Gibbons, John Doe Secretary
of State, Director of NDOC J.G. Cox, Acting Warden of High
Desert State Prison D. Neven, and caseworker Mark Drain
(Id. at 2, 3, 12-13). Plaintiff alleges four causes
of action and seeks monetary damages. (Id. at 22,
alleges the following: Defendants implemented a policy that
refused to apply parole credits pursuant to NRS §
209.4465(7)(b) to category B violent offenders who were
sentenced between 1997 and 2007. (Id. at 14).
Defendants deliberately disqualified Plaintiff and thousands
of others from the correct application of the sentencing
statute. (Id. at 21). They qualified only the
category C non-violent offenders for the application of NRS
§ 209.4465(7)(b). (Id. at 21).
O.M.D., John Doe supervisor and John Doe timekeeper illegally
disqualified Plaintiff from the benefits of NRS §
209.4465(7)(b). (Id. at 15). Plaintiff was entitled
to have his statutory credits applied to him under that
statute. (Id.) Defendants Gibbons and John
Doe Secretary of State “acted in concert and as a check
over the management of O.M.D., so their poor management
resulted in Cox and Neves failure to enforce NRS §
209.4465(7)(b). (Id.) This resulted in Plaintiff not
having statutory parole credits applied to his sentence for
the possibility of early parole, as provided for by NRS
§ 209.4465(7)(b). (Id.)
5, 1999, Plaintiff entered into a plea agreement with the
state. (Id.) The conditions of that contract were
that Plaintiff would plead guilty to Count 1 (conspiracy to
commit robbery) and Count 2 (robbery), with sentences to run
concurrently. (Id.) In exchange, the State verbally
promised Plaintiff that, if the sentencing court pronounced a
sentence longer than the prescribed minimum two-year
sentence, Plaintiff automatically would qualify for statutory
parole credits being deducted from his sentence, making him
eligible for the possibility of early parole. (Id.
at 15-16). Plaintiff was sentenced to 6-15 years for robbery
and an equal and consecutive term of 6-15 years for the use
of a deadly weapon enhancement. (Id.)
about July 10, 1999, Plaintiff was processed into the Nevada
state prison. (Id.) Plaintiff was not aware that
Defendants O.M.D. John Doe supervisor, and John Doe
timekeeper already had disqualified Plaintiff from the
benefits of NRS § 209.4465(7)(b). (Id.)
December of 1999, Plaintiff was involved in an assault and,
as a result, was disciplined with the forfeiture of all
statutory credits regarding his first sentence, which was the
robbery sentence. (Id.) On or about April 4, 2005,
after Plaintiff's parole hearing for robbery, Plaintiff
spoke to Defendant Drain about the state's promise of
statutory parole credits applying to his consecutive sentence
for the use of a deadly weapon. (Id. at 17). Drain
misinformed Plaintiff and told Plaintiff that he
misunderstood the State's promise because category B
offenders qualified only for the application of statutory
credits to their maximum terms, not their minimum terms.
(Id.) Drain advised Plaintiff to review his plea
agreement contract and see if there was any promise to apply
statutory credits to Plaintiff's minimum sentence.
(Id.) Plaintiff could not find the language in his
plea agreement and was then unaware of NRS §
209.4465(7)(b), the statute that supported the state's
verbal promise to apply statutory credits to his minimum
sentence. (Id.) Plaintiff was denied parole until
the sentence expired on April 5, 2008. (Id. at 19).
April 5, 2008, Plaintiff began serving his consecutive
sentence for the use of a deadly weapon enhancement.
(Id.) Defendants failed to apply statutory credits
to that sentence and he therefore had his first parole
hearing on that sentence on April 4, 2014, over ...