United States District Court, D. Nevada
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
a formerly incarcerated person of the Nevada Department of
Corrections (“NDOC”), has submitted a civil
rights complaint pursuant to 42 U.S.C. § 1983
(“Complaint”) and has filed an application to
proceed in forma pauperis for prisoners, a motion
for declaratory judgment and a motion for judicial action.
(ECF Nos. 1, 1-1, 1-2, 6.) The Court denies the application
to proceed in forma pauperis for prisoners (ECF No.
1) as moot because Plaintiff is no longer incarcerated. The
Court now screens Plaintiff's Complaint pursuant to 28
U.S.C. § 1915A and addresses the motions.
courts must conduct a preliminary screening in any case in
which an incarcerated person 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 Id. § 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 an
incarcerated person'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 Am., 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 Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). A formulaic recitation of the elements
of a cause of action is insufficient. Id.
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 an incarcerated person
may therefore be dismissed sua sponte if that
person'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 Defendant NDOC Director James E.
Dzurenda for events that took place while Plaintiff was
incarcerated at the Stewart Conservation Camp. (ECF No. 1-1
at 1.) Plaintiff alleges one count and seeks monetary damages
and declaratory relief. (Id. at 4, 9.)
Complaint alleges the following. In March 2008, a state court
sentenced Plaintiff to life in prison with parole eligibility
after serving 10 years. (Id. at 4.) On December 14,
2017, the parole board granted Plaintiff parole, effective
when eligible. (Id.) The NDOC offender management
division timekeeper determined that Plaintiff's parole
eligibility date (“PED”) was March 11, 2018.
(Id.) The PED ended Plaintiff's 10-year minimum
sentence and parole was effective on that date.
(Id.) Both the grant of parole and its effective
date were a protected liberty interest. (Id.) Even
though Dzurenda lacked the statutory authority to hold
Plaintiff in custody past March 11, 2018, Plaintiff remained
in Dzurenda's custody until August 15, 2018.
(Id.) Plaintiff alleges a Fourteenth Amendment due
process violation. (Id.)
Heck v. Humphrey, 512 U.S. 477 (1994), 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 his conviction or sentence; if it would,
the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been
claims implicate Heck because he is challenging the
duration of his sentence. However, the Court finds that,
despite the Heck bar, Plaintiff may bring this
§ 1983 claim because habeas relief is unavailable to
Plaintiff because he is no longer incarcerated. See
Nonnette v. Small, 316 F.3d 872, 875-77 (9th Cir. 2002).
The Court will now address Plaintiff's due process claim.
order to state a Fourteenth Amendment due process claim, a
plaintiff must adequately allege that he was denied a
specified liberty interest and that he was deprived of that
liberty interest without the constitutionally required
procedures. Swarthout v. Cooke, 562 U.S. 216, 219
(2011). In Nevada, state prisoners do not have a liberty
interest in parole or parole eligibility. See Moor v.
Palmer, 603 F.3d 658, 661-62 (9th Cir. 2010);
Fernandez v. Nevada, No. 3:06-CV-00628-LRH-RAM, 2009
WL 700662, at *10 (D. Nev. Mar. 13, 2009); see NRS
§ 213.10705 (stating that “[t]he Legislature finds
and declares that the release or continuation of a person on
parole or probation is an act of grace of the State. No
person has a right to parole or probation . . . and it is not
intended that the establishment of standards relating thereto
create any such right or interest in liberty or property or
establish a basis for any cause of action against the State,
its political subdivisions, agencies, boards, commissions,
departments, officers or employees”). The Supreme Court
has held that, if state law does not create a liberty
interest in parole, there can be no liberty interest after a
grant of parole. See Jago v. Van Curen, ...