United States District Court, D. Nevada
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
who is 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 an
application to proceed in forma pauperis. (ECF Nos.
1, 1-1). The Court now screens Plaintiff's civil rights
complaint pursuant to 28 U.S.C. § 1915A.
IN FORMA PAUPERIS APPLICATION
application to proceed in forma pauperis is granted.
(ECF No. 1). Based on the information regarding
Plaintiff's financial status, the Court finds that
Plaintiff is not able to pay an initial installment payment
toward the full filing fee pursuant to 28 U.S.C. § 1915.
Plaintiff will, however, be required to make monthly payments
toward the full $350.00 filing fee when he has funds
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
complaint, Plaintiff sues multiple defendants for events that
took place while Plaintiff was incarcerated at High Desert
State Prison (“HDSP”). (ECF No. 1-1 at 1).
Plaintiff sues Defendants State of Nevada, Nevada Department
of Corrections, Offender Management Division, Warden Brian
Williams, and James Dzurenda. (Id. at 2-3).
Plaintiff alleges one count and seeks monetary
damages. (Id. at 4, 8).
complaint alleges the following: Defendants refused to
recalculate Plaintiff's time pursuant to NRS §
209.4465(7)(b). (Id. at 3). Plaintiff
“directly gave notice” to Defendants but they
would not correct the error causing Plaintiff to serve his
entire minimum term of his sentence before being eligible for
parole. (Id. at 4). Plaintiff alleges Fourteenth
Amendment due process and equal protection violations.
initial matter, the Court recognizes that Plaintiff is
challenging Defendants' failure to apply good time
credits to Plaintiff's minimum sentence and parole
eligibility date as directed by NRS § 209.4465(7). NRS
§ 209.4465(7) permits good time credits to be applied to
a prisoner's minimum sentence, in certain circumstances,
thus, making an inmate eligible for parole sooner than he or
she would have been without the credits. See NRS
§ 209.4465(7); Williams v. State Dep't of
Corr., 402 P.3d 1260, 1262 (Nev. 2017). Because
Plaintiff's lawsuit revolves around his parole
eligibility date and not his underlying conviction or overall
sentence, he may proceed with this § 1983 action.
See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)
(holding that if a ...