Sauer v. Neven et al

Filing 7

ORDER Granting 5 Application for Leave to Proceed in forma pauperis. The Clerk shall FILE the complaint which is DISMISSED with prejudice. This dismissal shall count as a strike under 28 U.S.C. § 1915(g). Signed by Judge Gloria M. Navarro on 1/8/2013. (Copies have been distributed pursuant to the NEF; CC: Finance; Chief of Inmate Services - SLR)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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RICHARD D. SAUER,

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Plaintiff,
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vs
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D.W. NEVEN, et al.,
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Defendants.
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____________________________________)

2:12-cv-01754-GMN-GWF
ORDER

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Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections, has submitted

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a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma

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pauperis. The financial information provided indicates to the Court that plaintiff is unable to pay the filing

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fee at this time. The Court has screened plaintiff’s civil rights complaint pursuant to 28 U.S.C. § 1915A.

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I. Screening Pursuant to 28 U.S.C. § 1915A

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Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress

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from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a).

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In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous,

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malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant

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who is immune from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be

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liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d. 696, 699 (9th Cir. 1988). To state

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a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by

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the Constitution or laws of the United States was violated, and (2) that the alleged violation was

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committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

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In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform

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Act of 1995 (PLRA), a federal court must dismiss a prisoner’s claim, “if the allegation of poverty is

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untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted,

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or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).

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Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in

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Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915 when

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reviewing the adequacy of a complaint or an amended complaint. When a court dismisses a complaint

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under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing

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its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured

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by amendment. See Cato v. United States, 70 F.3d. 1103, 1106 (9th Cir. 1995).

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Review under Rule 12(b)(6) is essentially a ruling on a question of law. See Chappel v.

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Laboratory Corp. of America, 232 F.3d 719, 723 (9th Cir. 2000). Dismissal for failure to state a claim

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is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would

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entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999). In making this

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determination, the court takes as true all allegations of material fact stated in the complaint, and the court

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construes them in the light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957

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(9th Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than formal

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pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980); Haines v. Kerner, 404 U.S.

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519, 520 (1972) (per curiam). While the standard under Rule 12(b)(6) does not require detailed factual

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allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v.

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Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is

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insufficient. Id.; see Papasan v. Allain, 478 U.S. 265, 286 (1986).

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Additionally, a reviewing court should “begin by identifying pleadings [allegations] that, because

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they are no more than mere conclusions, are not entitled to the assumption of truth.” Ashcroft v. Iqbal, 556

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U.S. 662, 679 (2009). “While legal conclusions can provide the framework of a complaint, they must be

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supported with factual allegations.” Id. “When there are well-pleaded factual allegations, a court should

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assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

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“Determining whether a complaint states a plausible claim for relief [is] a context-specific task that

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requires the reviewing court to draw on its judicial experience and common sense.” Id.

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Finally, all or part of a complaint filed by a prisoner may therefore be dismissed sua sponte if the

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prisoner’s claims lack an arguable basis either in law or in fact. This includes claims based on legal

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conclusions that are untenable (e.g., claims against defendants who are immune from suit or claims of

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infringement of a legal interest which clearly does not exist), as well as claims based on fanciful factual

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allegations (e.g., fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28

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(1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).

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II. Screening of the Complaint

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Plaintiff alleges that he has been housed in “solitary confinment” [sic] disciplinary segregation for

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a period of at least four months while awaiting transfer to another institution. He asserts that he is

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classified for administrative segregation, and is housed improperly. Plaintiff argues that the disciplinary

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segregation housing situation denies him the opportunity to earn good time or work credits, that he has sent

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requests and grievances regarding the situation, but “due to overcrowding” in the prison, he has not been

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moved. Plaintiff names D.W. Neven and caseworker Miss Nash as defendants in their official capacity.

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To constitute cruel and unusual punishment in violation of the Eighth Amendment, prison

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conditions must involve “the wanton and unnecessary infliction of pain.” Rhodes v. Chapman, 452 U.S.

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337, 347 (1981). Although prison conditions may be restrictive and harsh, prison officials must provide

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prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Id.; Toussaint v.

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McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982).

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Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may

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be held liable only if they acted with “deliberate indifference to a substantial risk of serious harm.” Frost

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v. Agnos, 152 F.3d 1124, (9th Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825, 835 (1994). The

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deliberate indifference standard involves an objective and a subjective prong. First, the alleged

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deprivation must be, in objective terms, “sufficiently serious.” Farmer v. Brennan, 511 U.S. at 834

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(citing Wilson v. Seiter, 501 U.S. 294, 298 (1991)). Second, the prison official must “know of and

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disregard an excessive risk to inmate health or safety.” Id. at 837. Thus, “a prison official may be held

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liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that

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inmates face a substantial risk of harm and disregards that risk by failing to take reasonable measures to

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abate it.” Farmer v. Brennan, 511 U.S. at 835. Prison officials may avoid liability by presenting

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evidence that they lacked knowledge of the risk, or by presenting evidence of a reasonable, albeit

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unsuccessful, response to the risk. Id. at 844-45. Mere negligence on the part of the prison official is not

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sufficient to establish liability, but rather, the official’s conduct must have been wanton. Farmer v.

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Brennan, 511 U.S. at 835; Frost v. Agnose, 152 F.3d at 1128; see also Daniels v. Williams, 474 U.S. 327,

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33 (1986).

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The injury that plaintiff alleges is a loss of opportunity to earn good time and programing credits,

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rather than any physical injury or discomfort arising from the actual conditions of his confinement. Thus,

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plaintiff has not stated an Eighth Amendment claim in the facts alleged. However, construing his pro se

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pleading liberally, Balistreri, 901 F.2d. at 699. it appears plaintiff may be attempting to state a claim

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related to a “right” or liberty interest in earning good time credits.

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A prisoner has no liberty interest in their classification status or in their eligibility for

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rehabilitative programs. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976); Myron v. Terhune, 476 F.3d

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716, 718 (9th Cir. 2007). Neither do they have any liberty interest in obtaining or avoiding a transfer to

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another institution. See Olim v. Wakinekona, 461 U.S. 238, 245 (1983); Meachum v. Fano, 427 U&.S.

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215, 225-27 (1976); United States v. Brown, 59 F.3d 102, 105 (9th Cir. 1995) (per curiam). Thus, they

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have no right to be housed in a unit which permits them to program or earn good time credits while

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awaiting a transfer. Plaintiff’s complaint fails to state a claim for relief.

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III.

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Conclusion
Plaintiff has no constitutional right to a housing classification which affords him an opportunity

to earn good time credits. This complaint must be dismissed for failure to state a claim for relief.

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IT IS THEREFORE ORDERED that plaintiff’s application to proceed in forma pauperis (ECF

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No. 5) is GRANTED. Plaintiff shall not be required to pay an initial partial filing fee. However, even

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if this action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2).

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IT IS FURTHER ORDERED that the plaintiff is permitted to maintain this action to conclusion

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without the necessity of prepayment of any additional fees or costs or the giving of security therefor. This

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Order granting forma pauperis status shall not extend to the issuance of subpoenas at government expense.

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IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department

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of Corrections shall pay to the Clerk of the United States District Court, District of Nevada, 20% of the

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preceding month’s deposits to plaintiff’s account (inmate #1074595), in the months that the account

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exceeds $10.00, until the full $350 filing fee has been paid for this action. The Clerk of the Court shall

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send a copy of this Order to the Finance Division of the Clerk’s Office. The Clerk shall also send a copy

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of this Order to the attention of the Chief of Inmate Services for the Nevada Department of Corrections,

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P.O. Box 7011, Carson City, NV 89702.

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IT IS FURTHER ORDERED that the Clerk shall FILE the complaint (ECF No. 1-1) which is

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DISMISSED WITH PREJUDICE. This dismissal shall count as a strike under 28 U.S.C. § 1915(g).

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The Clerk shall enter judgment accordingly.

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Dated this 8th day of January, 2013.

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_________________________________________
Gloria M. Navarro
United States District Judge