UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 CHARLES NELSON, Case No. 3:24-cv-00180-ART-CLB 3 Plaintiff, SCREENING ORDER 4 v.
5 NEVADA DEPT. OF CORRECTIONS, et al., 6 Defendants. 7 8 9 Plaintiff, who is incarcerated in the custody of the Nevada Department of 10 Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 11 U.S.C. § 1983, and has filed an application to proceed in forma pauperis and a 12 motion for appointment of counsel. (ECF Nos. 1, 1-1, 1-3). The Court screens 13 Plaintiff’s civil rights complaint under 28 U.S.C. § 1915A and addresses the 14 application and motion. 15 SCREENING STANDARD 16 Federal courts must conduct a preliminary screening in any case in which 17 an incarcerated person seeks redress from a governmental entity or officer or 18 employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the 19 court must identify any cognizable claims and dismiss any claims that are 20 frivolous, malicious, fail to state a claim upon which relief may be granted, or 21 seek monetary relief from a defendant who is immune from such relief. See id. 22 § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. 23 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a 24 claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 25 (1) the violation of a right secured by the Constitution or laws of the United 26 States, and (2) that the alleged violation was committed by a person acting under 27 1 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 2 In addition to the screening requirements under § 1915A, pursuant to the 3 Prison Litigation Reform Act (“PLRA”), a federal court must dismiss an 4 incarcerated person’s claim if “the allegation of poverty is untrue” or if the action 5 “is frivolous or malicious, fails to state a claim on which relief may be granted, 6 or seeks monetary relief against a defendant who is immune from such relief.” 7 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon 8 which relief can be granted is provided for in Federal Rule of Civil Procedure 9 12(b)(6), and the court applies the same standard under § 1915 when reviewing 10 the adequacy of a complaint or an amended complaint. When a court dismisses 11 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 13 face of the complaint that the deficiencies could not be cured by amendment. 14 See Cato v. United 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 Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for 17 failure to state a claim is proper only if it is clear that the plaintiff cannot prove 18 any set of facts in support of the claim that would entitle him or her to relief. See 19 Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this 20 determination, the court takes as true all allegations of material fact stated in 21 the complaint, and the court construes them in the light most favorable to the 22 plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 23 Allegations of a pro se complainant are held to less stringent standards than 24 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). 25 While the standard under Rule 12(b)(6) does not require detailed factual 26 allegations, a plaintiff must provide more than mere labels and conclusions. Bell 27 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the 1 elements of a cause of action is insufficient. Id. 2 Additionally, a reviewing court should “begin by identifying pleadings 3 [allegations] that, because they are no more than mere conclusions, are not 4 entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 5 “While legal conclusions can provide the framework of a complaint, they must 6 be supported with factual allegations.” Id. “When there are well-pleaded factual 7 allegations, a court should assume their veracity and then determine whether 8 they plausibly give rise to an entitlement to relief.” Id. “Determining whether a 9 complaint states a plausible claim for relief . . . [is] a context-specific task that 10 requires the reviewing court to draw on its judicial experience and common 11 sense.” Id. 12 Finally, all or part of a complaint filed by an incarcerated person may 13 therefore be dismissed sua sponte if that person’s claims lack an arguable basis 14 either in law or in fact. This includes claims based on legal conclusions that are 15 untenable (e.g., claims against defendants who are immune from suit or claims 16 of infringement of a legal interest which clearly does not exist), as well as claims 17 based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See 18 Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); see also McKeever v. Block, 19 932 F.2d 795, 798 (9th Cir. 1991). 20 SCREENING OF COMPLAINT 21 In the complaint, Plaintiff sues multiple defendants for events that took 22 place while Plaintiff was incarcerated at Ely State Prison (“ESP”). (ECF No. 1-1 23 at 1). Plaintiff sues Defendants NDOC, Grievance Coordinator P. Hernandez, 24 Property Room Sergeant S. Moskoff, and Senior Correctional Officer Naegle. (Id. 25 at 1-2). Plaintiff brings two claims1 and seeks monetary damages. (Id. at 4-5). 26
27 1 Plaintiff labels his two claims “Claim 2” and “Claim 3.” (ECF No. 1-1 at 3-4). 1 Plaintiff alleges the following. In December 2022, C/O Naegle took 2 Plaintiff’s boombox because it did not have a cord. (Id. at 3). Plaintiff explained 3 that he was waiting for a cord from the ESP CERT Team. (Id.) C/O Naegle 4 ignored Plaintiff and took the boombox anyway. (Id.) C/O Naegle did not give 5 Plaintiff an unauthorized property form. (Id.) 6 After C/O Naegle took Plaintiff’s boombox, Plaintiff wrote multiple kites to 7 Sgt. Moskoff. (Id. at 4). Sgt. Moskoff partially granted relief by giving Plaintiff a 8 cord. (Id.) On July 26, 2023, C/O Gardner brought Plaintiff a cord but not his 9 boombox. (Id. at 3). Sgt. Moskoff knows that Plaintiff has not been given back 10 his boombox. (Id. at 4).
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UNITED STATES DISTRICT COURT 1 DISTRICT OF NEVADA 2 CHARLES NELSON, Case No. 3:24-cv-00180-ART-CLB 3 Plaintiff, SCREENING ORDER 4 v.
5 NEVADA DEPT. OF CORRECTIONS, et al., 6 Defendants. 7 8 9 Plaintiff, who is incarcerated in the custody of the Nevada Department of 10 Corrections (“NDOC”), has submitted a civil rights complaint pursuant to 42 11 U.S.C. § 1983, and has filed an application to proceed in forma pauperis and a 12 motion for appointment of counsel. (ECF Nos. 1, 1-1, 1-3). The Court screens 13 Plaintiff’s civil rights complaint under 28 U.S.C. § 1915A and addresses the 14 application and motion. 15 SCREENING STANDARD 16 Federal courts must conduct a preliminary screening in any case in which 17 an incarcerated person seeks redress from a governmental entity or officer or 18 employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the 19 court must identify any cognizable claims and dismiss any claims that are 20 frivolous, malicious, fail to state a claim upon which relief may be granted, or 21 seek monetary relief from a defendant who is immune from such relief. See id. 22 § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally construed. 23 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a 24 claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 25 (1) the violation of a right secured by the Constitution or laws of the United 26 States, and (2) that the alleged violation was committed by a person acting under 27 1 color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). 2 In addition to the screening requirements under § 1915A, pursuant to the 3 Prison Litigation Reform Act (“PLRA”), a federal court must dismiss an 4 incarcerated person’s claim if “the allegation of poverty is untrue” or if the action 5 “is frivolous or malicious, fails to state a claim on which relief may be granted, 6 or seeks monetary relief against a defendant who is immune from such relief.” 7 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon 8 which relief can be granted is provided for in Federal Rule of Civil Procedure 9 12(b)(6), and the court applies the same standard under § 1915 when reviewing 10 the adequacy of a complaint or an amended complaint. When a court dismisses 11 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 13 face of the complaint that the deficiencies could not be cured by amendment. 14 See Cato v. United 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 Am., 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for 17 failure to state a claim is proper only if it is clear that the plaintiff cannot prove 18 any set of facts in support of the claim that would entitle him or her to relief. See 19 Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this 20 determination, the court takes as true all allegations of material fact stated in 21 the complaint, and the court construes them in the light most favorable to the 22 plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). 23 Allegations of a pro se complainant are held to less stringent standards than 24 formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). 25 While the standard under Rule 12(b)(6) does not require detailed factual 26 allegations, a plaintiff must provide more than mere labels and conclusions. Bell 27 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the 1 elements of a cause of action is insufficient. Id. 2 Additionally, a reviewing court should “begin by identifying pleadings 3 [allegations] that, because they are no more than mere conclusions, are not 4 entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 5 “While legal conclusions can provide the framework of a complaint, they must 6 be supported with factual allegations.” Id. “When there are well-pleaded factual 7 allegations, a court should assume their veracity and then determine whether 8 they plausibly give rise to an entitlement to relief.” Id. “Determining whether a 9 complaint states a plausible claim for relief . . . [is] a context-specific task that 10 requires the reviewing court to draw on its judicial experience and common 11 sense.” Id. 12 Finally, all or part of a complaint filed by an incarcerated person may 13 therefore be dismissed sua sponte if that person’s claims lack an arguable basis 14 either in law or in fact. This includes claims based on legal conclusions that are 15 untenable (e.g., claims against defendants who are immune from suit or claims 16 of infringement of a legal interest which clearly does not exist), as well as claims 17 based on fanciful factual allegations (e.g., fantastic or delusional scenarios). See 18 Neitzke v. Williams, 490 U.S. 319, 327–28 (1989); see also McKeever v. Block, 19 932 F.2d 795, 798 (9th Cir. 1991). 20 SCREENING OF COMPLAINT 21 In the complaint, Plaintiff sues multiple defendants for events that took 22 place while Plaintiff was incarcerated at Ely State Prison (“ESP”). (ECF No. 1-1 23 at 1). Plaintiff sues Defendants NDOC, Grievance Coordinator P. Hernandez, 24 Property Room Sergeant S. Moskoff, and Senior Correctional Officer Naegle. (Id. 25 at 1-2). Plaintiff brings two claims1 and seeks monetary damages. (Id. at 4-5). 26
27 1 Plaintiff labels his two claims “Claim 2” and “Claim 3.” (ECF No. 1-1 at 3-4). 1 Plaintiff alleges the following. In December 2022, C/O Naegle took 2 Plaintiff’s boombox because it did not have a cord. (Id. at 3). Plaintiff explained 3 that he was waiting for a cord from the ESP CERT Team. (Id.) C/O Naegle 4 ignored Plaintiff and took the boombox anyway. (Id.) C/O Naegle did not give 5 Plaintiff an unauthorized property form. (Id.) 6 After C/O Naegle took Plaintiff’s boombox, Plaintiff wrote multiple kites to 7 Sgt. Moskoff. (Id. at 4). Sgt. Moskoff partially granted relief by giving Plaintiff a 8 cord. (Id.) On July 26, 2023, C/O Gardner brought Plaintiff a cord but not his 9 boombox. (Id. at 3). Sgt. Moskoff knows that Plaintiff has not been given back 10 his boombox. (Id. at 4). Prison officials lost Plaintiff’s boombox. (Id. at 3). 11 Plaintiff states that it is cruel and unusual punishment to lock him up in a cell 12 without his boombox. (Id.) 13 Plaintiff brings two claims for Eighth Amendment cruel and unusual 14 punishment for property deprivation. (Id. at 3-4). The Court dismisses the 15 Eighth Amendment claims without prejudice because there are no allegations in 16 the complaint to support an Eighth Amendment violation. Instead, the Court 17 interprets Plaintiff’s allegations as a claim for Fourteenth Amendment due 18 process property deprivation. 19 While an authorized, intentional deprivation of property is actionable 20 under the Due Process Clause, neither a negligent nor intentional unauthorized 21 deprivation of property by a prison official is actionable if a meaningful post- 22 deprivation remedy is available for the loss. Hudson v. Palmer, 468 U.S. 517, 533 23 (1984); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). An authorized 24 deprivation is one carried out pursuant to established state procedures, 25 regulations, or statutes. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436 26 (1982); Piatt v. MacDougall, 773 F.2d 1032, 1036 (9th Cir. 1985); see also 27 Knudson v. City of Ellensburg, 832 F.2d 1142, 1149 (9th Cir. 1987). 1 Plaintiff fails to state a colorable due process claim. Based on the 2 allegations, C/O Naegle was not authorized to take Plaintiff’s boombox because 3 he did not fill out unauthorized property form. Moreover, Plaintiff seems to allege 4 that prison officials negligently lost his boombox. Thus, prison officials engaged 5 in both a negligent and an intentionally unauthorized deprivation of Plaintiff’s 6 boombox at different times. The State of Nevada provides Plaintiff with a 7 meaningful post-deprivation remedy for this type of loss. See Nev. Rev. Stat. § 8 41.0322 (setting forth guidelines for actions by persons in custody of the NDOC 9 to recover compensation for loss or injury). As such, the Court dismisses this 10 claim with prejudice, as amendment would be futile. 11 MOTION FOR APPOINTMENT OF COUNSEL 12 Plaintiff has filed a motion for appointment of counsel on a form stating 13 that he is unlearned in the law, his issues are difficult, and he is unable to 14 comprehend the proceedings. (ECF No. 1-3). 15 A litigant does not have a constitutional right to appointed counsel in 42 16 U.S.C. § 1983 civil rights claims. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th 17 Cir. 1981). Pursuant to 28 U.S.C. § 1915(e)(1), “[t]he court may request an 18 attorney to represent any person unable to afford counsel.” However, the court 19 will appoint counsel for indigent civil litigants only in “exceptional 20 circumstances.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (§ 1983 21 action). “When determining whether ‘exceptional circumstances’ exist, a court 22 must consider ‘the likelihood of success on the merits as well as the ability of 23 the petitioner to articulate his claims pro se in light of the complexity of the legal 24 issues involved.” Id. “Neither of these considerations is dispositive and instead 25 must be viewed together.” Id. 26 In the instant case, Plaintiff has neither demonstrated a likelihood of 27 success on the merits nor exceptional circumstances that warrant the 1 || appointment of counsel. The Court denies the motion for appointment of 2 || counsel. 3 || IV. CONCLUSION 4 It is ordered that the complaint (ECF No. 1-1) is dismissed in its entirety 5 || with prejudice as amendment would be futile for failure to state a claim. 6 It is further ordered that the motion for appointment of counsel (ECF No. 7 || 1-3) is denied. 8 It is therefore ordered that Plaintiffs application to proceed in forma 9 || pauperis (ECF No. 1) without having to prepay the full filing fee is denied as 10 || moot. It is further ordered that this Court certifies that any in forma pauperis 11 || appeal from this order would not be taken “in good faith” pursuant to 28 U.S.C. 12) § 1915(a)(3). 13 It is further ordered that the Clerk of the Court close the case and enter 14 || judgment accordingly. 15 16 DATED: October 3, 2024. 17 18 fa. Nawsed De 19 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28