United States District Court, D. Nevada
MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE
who is incarcerated in the custody of the Nevada Department
of Corrections (“NDOC”), has submitted a civil
rights complaint (“Complaint”) pursuant to 42
U.S.C. § 1983 and has filed an application to proceed
in forma pauperis. (ECF Nos. 1-1, 4.) The Court now
addresses the application to proceed in forma
pauperis and screens Plaintiff's Complaint pursuant
to 28 U.S.C. § 1915A.
IN FORMA PAUPERIS APPLICATION
application to proceed in forma pauperis is
granted. (ECF No. 4.) 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 available.
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 multiple defendants for events that
took place while Plaintiff was incarcerated at Ely State
Prison (“ESP”). (ECF No. 1-1 at 1.) Plaintiff
sues Defendants Warden Filson, Warden Gittere, Warden William
Reubart, and the NDOC. (Id. at 1-2.) Plaintiff
alleges two counts and seeks monetary damages. (Id.
at 5, 9.)
alleges the following. Plaintiff has written at least five to
six grievances and has not received a response from the
prison administration. (Id. at 3.) His grievances
have ranged from monetary disputes, medical issues, lack of
treatment, meals, housing, and more. (Id.) These
things are important to him and have caused him financial
setbacks, medical issues, and other hardships. (Id.)
In response to the grievances, prison officials tell
Plaintiff that he can only submit one grievance a week.
(Id.) As a result, prison officials have overlooked
or ignored many of Plaintiff's grievances. (Id.)
Many of Plaintiff's grievances are returned without any
action whatsoever. (Id. at 12.) This has been
ongoing since April 2018. (Id.) Plaintiff says that
there is nothing in the NDOC or prison handbook about this
under grievance procedures. (Id.) Plaintiff alleges
violations of due process (Count I) and negligence (Count
II). (Id. at 4-5.)
have no stand-alone due process rights related to the
administrative grievance process. See Mann v. Adams,
855 F.2d 639, 640 (9th Cir. 1988) (holding that a state's
unpublished policy statements establishing a grievance
procedure do not create a constitutionally protected liberty
interest); Ramirez v. Galaza, 334 F.3d 850, 860 (9th
Cir. 2003) (holding that there is no liberty interest in ...