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, 4). The Court now screens Plaintiff's civil rights
complaint pursuant to 28 U.S.C. § 1915A and addresses
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 at the Northern Nevada
Correctional Center (“NNCC”). (ECF No. 1-1 at 1).
Plaintiff sues Defendants James Dzurenda, James G. Cox, Baca,
NDOC, Mary Flores, Division of Parole and Probation for
Nevada, Sgt. Waters, Peterson, Nancy Porter, Moses, Ken
Bradshaw, Nevada Board of Parole Commissioners, Connie S.
Bisbee, Tony Corda, Susan Jackson, and Does. Id. at
4-8. Plaintiff alleges three counts and seeks declaratory and
monetary relief. Id. at 11, 35-37.
complaint generally alleges that prison officials failed to
correctly calculate Plaintiff's good-time credits and, as
a result, unlawfully restrained and falsely imprisoned
Plaintiff past his sentence expiration date. See
generally ECF No. 1-1. Plaintiff's prison sentence
expired on April 17, 2017, but he believes that his sentence
should have expired in 2016. Id. at 9-10. Plaintiff
learned about his miscalculated credits in April 2017.
Id. at 9. In Counts I through III, Plaintiff alleges
violations of Nevada Constitution Article 4, § 17 and
Article 1, § 8; NRS §§ 200.417, 200.481, and
179.11635; and the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the U.S. Constitution. Id. at 9-11.
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 ...