Deluna v. Vare et al

Filing 12

ORDER Dismissing Claims Against the State of Nevada and Any Claim for Cruel and Unusual Punishment. Notice of Acceptance of Service/Inability to Accept Service due by 5/30/2011. Catherine Cortez Masto added as counsel for defendants and NEFs for documents 6 , 7 , and 10 regenerated. Copy of amended complaint mailed to Plaintiff. Signed by Judge James C. Mahan on 5/9/11. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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MATEO HERNANDEZ DELUNA,
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Plaintiff,

2:09-cv-01228-JCM-PAL

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vs.
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ORDER
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WARDEN VARE, et al.
Defendants.

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This pro se prisoner civil rights action by a state inmate comes before the court for
initial review of the amended complaint (#10) under 28 U.S.C. § 1915A.

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When a “prisoner seeks redress from a governmental entity or officer or employee of

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a governmental entity,” the court must “identify cognizable claims or dismiss the complaint,

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or any portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a

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claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who

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is immune from such relief.” 28 U.S.C. § 1915A(b).

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In considering whether the plaintiff has stated a claim upon which relief can be granted,

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all material factual allegations in the complaint are accepted as true for purposes of initial

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review and are to be construed in the light most favorable to the plaintiff. See,e.g., Russell

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v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980).

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unsupported by any actual allegations of fact are not assumed to be true in reviewing the

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complaint. Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-51 & 1954, 173 L.Ed.2d 868

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(2009). That is, conclusory assertions that constitute merely formulaic recitations of the

However, mere legal conclusions

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elements of a cause of action and that are devoid of further factual enhancement are not

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accepted as true and do not state a claim for relief. Id. Allegations of a pro se litigant are

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held to less stringent standards than are formal pleadings by lawyers. Haines v. Kerner, 404

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U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972).

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In the amended complaint, plaintiff Mateo Hernandez Deluna presents claims arising

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out of a disciplinary conviction at Lovelock Correctional Center for his alleged involvement in

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a gang-related attack on other inmates. In count I, he alleges that he was denied due process

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of law because, inter alia, the disciplinary conviction allegedly was not supported by sufficient

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evidence to satisfy the “some evidence” standard. In count II, he alleges that he was

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subjected to an excessive fine in violation of the Eighth Amendment when he was ordered to

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pay $23,000 for his share of the victims’ medical expenses despite the victims allegedly not

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being actually injured. He seeks monetary damages together with declaratory and injunctive

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relief. He has named four Lovelock officials or officers in their individual and official capacities

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as well as the State of Nevada.

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Plaintiff’s claims against the State of Nevada are barred by state sovereign immunity

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under the Eleventh Amendment. See,e.g., Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).

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State sovereign immunity bars suit in federal court against a state or an arm of a state

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regardless of the relief sought. See,e.g., Pennhurst State School & Hospital v. Halderman,

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465 U.S. 89, 100-01, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984). Therefore, plaintiff may not

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seek injunctive relief directly from the state as a defendant. State sovereign immunity limits

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the jurisdiction of the federal courts and can be raised at any time during the judicial

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proceedings either by the parties or by the court sua sponte. In re Jackson, 184 F.3d 1046,

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1048 (9th Cir. 1999). Therefore, all claims asserted against the state must be dismissed.

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The court construes the official capacity claims as extending only to the claims for

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declaratory and equitable relief. The prior order clearly states that plaintiff may not seek

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monetary damages from the defendant state officers in their official capacity. See #6, at 4.

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Count I, as presented in the amended complaint, states a due process claim. Even

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if the court were to assume, arguendo, that the allegations did not tend to establish the
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deprivation of a protected liberty interest, the allegation that plaintiff was ordered to pay

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$23,000 in restitution as a result of the disciplinary conviction alleges the deprivation of a

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property interest. The alleged deprivation of either a protected liberty interest or a property

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interest may provide the required threshold predicate for a procedural due process claim.

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Count II states an Eighth Amendment claim for an excessive fine but not for cruel and

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unusual punishment. As noted in the prior screening order, the allegations that plaintiff was

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ordered to pay a restitution amount that was grossly disproportionate to the harm in fact

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allegedly sustained by the victim appears to state a claim for relief under the Eighth

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Amendment. Cf. United States v. Dubose, 146 F.3d 1141, 1145-46 (9th Cir. 1998). Nothing

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in the amended complaint supports a claim for cruel and unusual punishment, however. That

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aspect of the claim will be dismissed.

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While the court is directing service of the amended complaint for a response, it does
so with the following caveats.

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First, if, as was instead alleged in the original complaint, plaintiff in truth was denied

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good time or other sentencing credits as a consequence of the disciplinary conviction, then

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his due process claim is not cognizable under section 1983 rather than in habeas. See #6,

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at 3. The court has given plaintiff the benefit of the doubt as to his not carrying forward

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allegations in this regard in the amended complaint. But if the true state of affairs is that

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plaintiff lost good time or other statutory credit as a result of the disciplinary conviction, the

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claim will be dismissed forthwith as noncognizable under section 1983.

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Second, as stated in the prior screening order, the court expresses no opinion as to

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whether the claims are subject to affirmative defenses such as untimeliness1 or failure to

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exhaust administrative remedies.

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Third, the court has wholly disregarded plaintiff’s allegations relying upon alleged

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violations of departmental administrative regulations or policy as a basis for a due process

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or other federal violation. It is well-established law that an alleged violation of a state law, in

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Cf. Knox v. Davis, 260 F.3d 1009, 1012-15 (9th Cir. 2001)(lim itations on continuing violation theory).

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and of itself, does not give rise to a denial of due process. See,e.g., Swarthout v. Cooke, ___

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U.S. ___, 131 S.Ct. 859, 178 L.Ed.2d 732 (2011); Sandin v. Conner, 515 U.S. 472, 477-84,

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115 S.Ct. 2293, 2297-2300, 132 L.Ed.2d 418 (1995). The sole threshold predicate for a due

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process claim relied upon herein is the deprivation of a property interest by virtue of the

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restitution order, not the alleged violation of any state administrative regulation or policy.

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IT THEREFORE IS ORDERED that the following claims are DISMISSED without

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prejudice: (a) all claims against the State of Nevada; and (b) any claim for cruel and unusual

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punishment under the Eighth Amendment but leaving plaintiff’s excessive fine claim under the

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Eighth Amendment before the court.

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IT FURTHER IS ORDERED that the clerk shall add Attorney General Catherine Cortez

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Masto as counsel for defendants and shall make informal electronic service of this order, the

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pleadings and the prior screening order -- via attachments of ## 6, 7 and 10 – upon

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defendants via a notice of electronic filing, directed to the attention of Pamela Sharp.

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IT FURTHER IS ORDERED that the Attorney General shall advise the court within

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twenty-one (21) days from the date that this order is entered whether she can accept service

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of process for the named defendants. As to any of the named defendants for which the

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Attorney General cannot accept service, the Attorney General shall file, under seal, the last

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known address(es) of those defendant(s). Any defendants for whom service is accepted

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shall file an answer or otherwise respond to the amended complaint within thirty (30) days of

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the date of the notice of acceptance of service.

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IT FURTHER IS ORDERED that, if service cannot be accepted by the Attorney

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General for a named defendant, then plaintiff must file a motion requesting the issuance of

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a summons and specifying a full name and address for the defendant. Service must be

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completed within one hundred twenty (120) days from the Attorney General’s service of a

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statement that she will not be able to accept service for the defendant.

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IT FURTHER IS ORDERED that, henceforth, plaintiff shall serve upon defendants or,

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if an appearance has been entered by counsel, upon their attorney(s), a copy of every

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pleading, motion or other document submitted for consideration by the court. Plaintiff shall
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include with the original paper submitted for filing a certificate stating the date that a true and

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correct copy of the document was mailed to the defendants or counsel for defendants. If

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counsel has entered a notice of appearance, plaintiff shall direct service to the individual

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attorney named in the notice of appearance, at the address stated therein. The court may

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disregard any paper received by a district judge or magistrate judge which has not been filed

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with the clerk, and any paper received by a district judge, magistrate judge or the clerk which

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fails to include a certificate showing proper service.
The clerk shall send an additional copy of the amended complaint to plaintiff with this

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order.
DATED:

May 9, 2011.

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_________________________________
JAMES C. MAHAN
United States District Judge

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