Renteria v. Skolnik et al

Filing 7

ORDER DISMISSING CASE with Prejudice. Clerk shall enter judgment accordingly and close this case. Signed by Judge Philip M. Pro on 11/30/10. (Copies have been distributed pursuant to the NEF - ASB)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. HOWARD SKOLNIK, et al., Defendants. FROILAN RENTERIA, #1033690 Plaintiff, ) ) ) ) ) ) ) ) ) ) ) / UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

2:10-cv-00931-PMP-LRL ORDER

This is a pro se civil rights action. The court now reviews the amended complaint. I. Screening Standard Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). Pursuant to the Prisoner Litigation Reform Act (PLRA), federal courts must dismiss a prisoner's claims, "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). A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).

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Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under Section 1915(e)(2) when reviewing the adequacy of a complaint or amended complaint. Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v. Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). A complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to plaintiff and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Allegations in a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). All or part of a complaint filed by a prisoner may be dismissed sua sponte, however, if the prisoner'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, 490 U.S. at 327-28; see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Moreover, "a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them." Denton v. Hernandez, 504 U.S. 25, 33 (1992). 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

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(9th Cir. 1995). To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right." Hydrick v. Hunter, 466 F.3d 676, 689 (9th Cir. 2006). II. Instant Complaint In his amended complaint, plaintiff, who is incarcerated at Southern Desert Correctional Center ("SDCC"), has sued Nevada Department of Corrections ("NDOC") Director Howard Skolnik. While plaintiff's claims are vague, he appears to allege that Director Skolnik allowed, directed or failed to prevent other, unidentified prison personnel from using certain, unspecified information in the determination of his custody level in violation of his Fourteenth Amendment due process and equal protection rights. Plaintiff's complaint must be dismissed for failure to state a claim for which relief may be granted. With respect to plaintiff's equal protection claim, "[p]risoners are protected under the Equal Protection Clause of the Fourteenth Amendment from invidious discrimination based on race." Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Prisoners are also protected by the Equal Protection Clause from intentional discrimination on the basis of their religion. See Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997). To establish a violation of the Equal Protection Clause, the prisoner must present evidence of discriminatory intent. See Washington v. Davis, 426 U.S. 229, 239-40 (1976). Plaintiff has not alleged that Director Skolnik intentionally discriminated against him based on race or religion or his membership in any other protected class. Accordingly, his equal protection claim is dismissed.

With respect to his due process claim, prisoners have no liberty interest in their classification status. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007); Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998). Thus, while plaintiff's claims are vague, they do not even implicate his Fourteenth Amendment due process or equal protection rights.

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Accordingly, plaintiff's amended complaint must be dismissed. Plaintiff will not be granted further leave to amend, as it is clear that such amendment would be futile. III. Conclusion IT IS THEREFORE ORDERED that plaintiff's first amended complaint (docket #6) is DISMISSED with prejudice and without leave to amend for failure to state a claim for which relief may be granted. IT IS FURTHER ORDERED that the Clerk shall enter judgment accordingly and close this case.

DATED: November 30, 2010.

PHILIP M. PRO United States District Judge

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