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Orr v. State

United States District Court, D. Nevada

June 18, 2019

STEVEN D. ORR, Plaintiff,
STATE OF NEVADA, et al., Defendants.



         Plaintiff, 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.[1] The Court now screens Plaintiff's amended civil rights complaint pursuant to 28 U.S.C. § 1915A.[2]


         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. 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).

         In 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).

         Review 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 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 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).


         In the 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, 23).

         The FAC alleges the following: Defendants implemented a policy that refused to apply parole credits pursuant to NRS § 209.4465(7)(b)[3] to category B violent offenders who were sentenced between 1997 and 2007.[4] (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).

         The 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.[5] (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.)

         On May 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.)

         On or 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.)

         In 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).

         On 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 ...

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