1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA
3 DAMON JOHNSON, Case No. 2:18-cv-01400-RFB-BNW
4 Plaintiff, SCREENING ORDER
5 v.
6 STATE OF NEVADA et al.,
7 Defendants.
8 9 Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”), 10 has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an 11 application to proceed in forma pauperis. (ECF Nos. 1, 1-1). The Court now screens 12 Plaintiff’s civil rights complaint pursuant to 28 U.S.C. § 1915A. 13 I. IN FORMA PAUPERIS APPLICATION 14 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 1). Based 15 on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not 16 able to pay an initial installment payment toward the full filing fee pursuant to 28 U.S.C. § 17 1915. Plaintiff will, however, be required to make monthly payments toward the full 18 $350.00 filing fee when he has funds available. 19 II. SCREENING STANDARD 20 Federal courts must conduct a preliminary screening in any case in which a 21 prisoner seeks redress from a governmental entity or officer or employee of a 22 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 23 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 24 upon which relief may be granted or seek monetary relief from a defendant who is immune 25 from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be 26 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 28 (1) the violation of a right secured by the Constitution or laws of the United States, and 1 (2) that the alleged violation was committed by a person acting under color of state law. 2 See West v. Atkins, 487 U.S. 42, 48 (1988). 3 In addition to the screening requirements under § 1915A, pursuant to the Prison 4 Litigation Reform Act (PLRA), a federal court must dismiss a prisoner’s claim, if “the 5 allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a 6 claim on which relief may be granted, or seeks monetary relief against a defendant who 7 is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure 8 to state a claim upon which relief can be granted is provided for in Federal Rule of Civil 9 Procedure 12(b)(6), and the court applies the same standard under § 1915 when 10 reviewing the adequacy of a complaint or an amended complaint. When a court 11 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the 12 complaint with directions as to curing its deficiencies, unless it is clear from the face of 13 the complaint that the deficiencies could not be cured by amendment. See Cato v. United 14 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 15 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 16 Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure 17 to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 18 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 19 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all 20 allegations of material fact stated in the complaint, and the court construes them in the 21 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 22 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 23 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 24 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 25 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 26 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 27 insufficient. Id. 28 / / / 1 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 2 that, because they are no more than mere conclusions, are not entitled to the assumption 3 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can 4 provide the framework of a complaint, they must be supported with factual allegations.” 5 Id. “When there are well-pleaded factual allegations, a court should assume their veracity 6 and then determine whether they plausibly give rise to an entitlement to relief.” Id. 7 “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 8 specific task that requires the reviewing court to draw on its judicial experience and 9 common sense.” Id. 10 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed 11 sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This 12 includes claims based on legal conclusions that are untenable (e.g., claims against 13 defendants who are immune from suit or claims of infringement of a legal interest which 14 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 15 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); 16 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 17 III. SCREENING OF COMPLAINT 18 In the complaint, Plaintiff sues multiple defendants for events that took place while 19 Plaintiff was incarcerated at High Desert State Prison (“HDSP”). (ECF No. 1-1 at 1). 20 Plaintiff sues Defendants State of Nevada, Nevada Department of Corrections, Offender 21 Management Division, Warden Brian Williams, and James Dzurenda. (Id. at 2-3). 22 Plaintiff alleges one count and seeks monetary damages.1 (Id. at 4, 8). 23 The complaint alleges the following: Defendants refused to recalculate Plaintiff’s 24 time pursuant to NRS § 209.4465(7)(b). (Id. at 3). Plaintiff “directly gave notice” to 25 Defendants but they would not correct the error causing Plaintiff to serve his entire 26 / / / 27 28 1 Inmate Daryl E. Gholson helped Plaintiff prepare the complaint.
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1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA
3 DAMON JOHNSON, Case No. 2:18-cv-01400-RFB-BNW
4 Plaintiff, SCREENING ORDER
5 v.
6 STATE OF NEVADA et al.,
7 Defendants.
8 9 Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”), 10 has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an 11 application to proceed in forma pauperis. (ECF Nos. 1, 1-1). The Court now screens 12 Plaintiff’s civil rights complaint pursuant to 28 U.S.C. § 1915A. 13 I. IN FORMA PAUPERIS APPLICATION 14 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 1). Based 15 on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not 16 able to pay an initial installment payment toward the full filing fee pursuant to 28 U.S.C. § 17 1915. Plaintiff will, however, be required to make monthly payments toward the full 18 $350.00 filing fee when he has funds available. 19 II. SCREENING STANDARD 20 Federal courts must conduct a preliminary screening in any case in which a 21 prisoner seeks redress from a governmental entity or officer or employee of a 22 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 23 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 24 upon which relief may be granted or seek monetary relief from a defendant who is immune 25 from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be 26 liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 27 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 28 (1) the violation of a right secured by the Constitution or laws of the United States, and 1 (2) that the alleged violation was committed by a person acting under color of state law. 2 See West v. Atkins, 487 U.S. 42, 48 (1988). 3 In addition to the screening requirements under § 1915A, pursuant to the Prison 4 Litigation Reform Act (PLRA), a federal court must dismiss a prisoner’s claim, if “the 5 allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a 6 claim on which relief may be granted, or seeks monetary relief against a defendant who 7 is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure 8 to state a claim upon which relief can be granted is provided for in Federal Rule of Civil 9 Procedure 12(b)(6), and the court applies the same standard under § 1915 when 10 reviewing the adequacy of a complaint or an amended complaint. When a court 11 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the 12 complaint with directions as to curing its deficiencies, unless it is clear from the face of 13 the complaint that the deficiencies could not be cured by amendment. See Cato v. United 14 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 15 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 16 Chappel v. Lab. Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure 17 to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 18 support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 19 756, 759 (9th Cir. 1999). In making this determination, the court takes as true all 20 allegations of material fact stated in the complaint, and the court construes them in the 21 light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th 22 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 23 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While 24 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 25 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 26 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is 27 insufficient. Id. 28 / / / 1 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 2 that, because they are no more than mere conclusions, are not entitled to the assumption 3 of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can 4 provide the framework of a complaint, they must be supported with factual allegations.” 5 Id. “When there are well-pleaded factual allegations, a court should assume their veracity 6 and then determine whether they plausibly give rise to an entitlement to relief.” Id. 7 “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 8 specific task that requires the reviewing court to draw on its judicial experience and 9 common sense.” Id. 10 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed 11 sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This 12 includes claims based on legal conclusions that are untenable (e.g., claims against 13 defendants who are immune from suit or claims of infringement of a legal interest which 14 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 15 fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); 16 see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 17 III. SCREENING OF COMPLAINT 18 In the complaint, Plaintiff sues multiple defendants for events that took place while 19 Plaintiff was incarcerated at High Desert State Prison (“HDSP”). (ECF No. 1-1 at 1). 20 Plaintiff sues Defendants State of Nevada, Nevada Department of Corrections, Offender 21 Management Division, Warden Brian Williams, and James Dzurenda. (Id. at 2-3). 22 Plaintiff alleges one count and seeks monetary damages.1 (Id. at 4, 8). 23 The complaint alleges the following: Defendants refused to recalculate Plaintiff’s 24 time pursuant to NRS § 209.4465(7)(b). (Id. at 3). Plaintiff “directly gave notice” to 25 Defendants but they would not correct the error causing Plaintiff to serve his entire 26 / / / 27 28 1 Inmate Daryl E. Gholson helped Plaintiff prepare the complaint. (ECF No. 1-1 at 8). 1 minimum term of his sentence before being eligible for parole. (Id. at 4). Plaintiff alleges 2 Fourteenth Amendment due process and equal protection violations. (Id.). 3 As an initial matter, the Court recognizes that Plaintiff is challenging Defendants’ 4 failure to apply good time credits to Plaintiff’s minimum sentence and parole eligibility date 5 as directed by NRS § 209.4465(7). NRS § 209.4465(7) permits good time credits to be 6 applied to a prisoner’s minimum sentence, in certain circumstances, thus, making an 7 inmate eligible for parole sooner than he or she would have been without the credits. See 8 NRS § 209.4465(7); Williams v. State Dep’t of Corr., 402 P.3d 1260, 1262 (Nev. 2017). 9 Because Plaintiff’s lawsuit revolves around his parole eligibility date and not his 10 underlying conviction or overall sentence, he may proceed with this § 1983 action. See 11 Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (holding that if a civil claim merely would 12 speed up the plaintiff’s consideration for parole and would not necessarily imply the 13 invalidity of the duration of confinement, then that claim may proceed in a § 1983 action). 14 A. Due Process 15 In order to state a Fourteenth Amendment due process claim, a plaintiff must 16 adequately allege that he was denied a specified liberty interest and that he was deprived 17 of that liberty interest without the constitutionally required procedures. Swarthout v. 18 Cooke, 562 U.S. 216, 219 (2011). In Nevada, state prisoners do not have a liberty interest 19 in parole or parole eligibility. See Moor v. Palmer, 603 F.3d 658, 661-62 (9th Cir. 2010); 20 Fernandez v. Nevada, No. 3:06-CV-00628-LRH-RAM, 2009 WL 700662, at *10 (D. Nev. 21 Mar. 13, 2009). Additionally, allegations that a defendant violated state law are not 22 sufficient to state a claim for violation of the Fourteenth Amendment’s due process clause. 23 Swarthout, 562 U.S. at 222 (holding that “a ‘mere error of state law’ is not a denial of due 24 process”); see also Young v. Williams, No. 2:11-CV-01532-KJD, 2012 WL 1984968, at *3 25 (D. Nev. June 4, 2012) (holding that alleged error in applying good time credits to 26 sentence was an error of state law that did not constitute a due process violation). 27 The Court finds that Plaintiff fails to state a colorable due process claim based on 28 the allegations that Defendants violated NRS § 209.4465(7)(b) and deprived him of an 1 earlier parole eligibility date. Plaintiff cannot establish a liberty interest in his parole 2 eligibility date. Moreover, the failure to properly apply NRS § 209.4465(7) constitutes an 3 error of state law and cannot be the basis of a due process claim. As such, the Court 4 dismisses the due process claim, with prejudice, as amendment would be futile. 5 B. Equal Protection 6 The Equal Protection Clause of the Fourteenth Amendment is essentially a 7 direction that all similarly situated persons be treated equally under the law. City of 8 Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In order to state an 9 equal protection claim, a plaintiff must allege facts demonstrating that defendants acted 10 with the intent and purpose to discriminate against him based upon membership in a 11 protected class, or that defendants purposefully treated him differently than similarly 12 situated individuals without any rational basis for the disparate treatment. Lee v. City of 13 Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001); see also Vill. of Willowbrook v. Olech, 14 528 U.S. 562, 564 (2000). 15 The Court finds that Plaintiff fails to state a colorable equal protection claim. 16 Plaintiff has not made any allegations that even attempt to support an equal protection 17 claim. As such, the Court dismisses the claim without prejudice. 18 IV. CONCLUSION 19 For the foregoing reasons, IT IS ORDERED that Plaintiff's application to proceed 20 in forma pauperis (ECF No. 1) without having to prepay the full filing fee is granted. 21 Plaintiff shall not be required to pay an initial installment fee. Nevertheless, the full filing 22 fee shall still be due, pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation 23 Reform Act. The movant herein is permitted to maintain this action to conclusion without 24 the necessity of prepayment of fees or costs or the giving of security therefor. This order 25 granting in forma pauperis status shall not extend to the issuance and/or service of 26 subpoenas at government expense. 27 IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by 28 the Prison Litigation Reform Act, the Nevada Department of Corrections shall pay to the 1| Clerk of the United States District Court, District of Nevada, 20% of the preceding month's deposits to the account of Damon Johnson, #61284 (in months that the account exceeds 3| $10.00) until the full $350 filing fee has been paid for this action. The Clerk shall send a 4| copy of this order to the attention of Chief of Inmate Services for the Nevada 5| Department of Prisons, P.O. Box 7011, Carson City, NV 89702. 6 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 7 | unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended 8| by the Prison Litigation Reform Act. 9 IT IS FURTHER ORDERED that the Clerk of the Court file the complaint (ECF No. 10| 1-1). 11 IT IS FURTHER ORDERED that the Fourteenth Amendment due process claim is dismissed, with prejudice, as amendment would be futile. 13 IT IS FURTHER ORDERED that the Fourteenth Amendment equal protection claim is dismissed without prejudice. 15 IT IS FURTHER ORDERED that the Clerk of the Court close this case and enter 16 | judgment accordingly. 17 IT IS FURTHER ORDERED that this Court certifies that any in forma pauperis 18| appeal from this order would not be taken “in good faith” pursuant to 28 U.S.C. § 19) 1915(a)(3). 20 21 DATED this 27th day of August, 2019. 22 AS 23 RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 25 26 27 28
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