Newton v. State of Nevada et al

Filing 5

SCREENING ORDER. IT IS ORDERED that a decision on 4 the application to proceed in forma pauperis is deferred.IT IS FURTHER ORDERED that the clerk of the court shall file 1 -2 the complaint. IT IS FURTHER ORDERED that the clerk of th e court shall send to plaintiff the approved form for filing a § 1983 complaint, instructions for the same, and a copy of his original 1 -2 complaint. See Order for details/deadlines. Signed by Judge James C. Mahan on 5/18/17. (Copies have been distributed pursuant to the NEF - MR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES NEWTON,

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Plaintiff,
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v.
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STATE OF NEVADA et al.,
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Defendants.
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___________________________________ )

2:16-cv-01995-JCM-GWF
SCREENING ORDER

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Plaintiff, who is a prisoner in the custody of the Nevada department of corrections

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(“NDOC”), has submitted a civil rights complaint pursuant to 42 U.S.C. § 1983 and has filed

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an application to proceed in forma pauperis. (ECF No. 1-2, 4). The matter of the filing fee

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shall be temporarily deferred. The court now screens plaintiff’s civil rights complaint pursuant

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to 28 U.S.C. § 1915A.

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I.

SCREENING STANDARD

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

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seeks redress from a governmental entity or officer or employee of a governmental entity. See

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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss

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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted

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or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.

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§ 1915A(b)(1),(2). Pro se pleadings, however, must be liberally construed. Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim under 42 U.S.C. §

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1983, a plaintiff must allege two essential elements: (1) the violation of a right secured by the

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

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a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In addition to the screening requirements under § 1915A, pursuant to the Prison

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Litigation Reform Act (PLRA), a federal court must dismiss a prisoner’s claim, if “the allegation

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of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a claim on which

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relief may be granted, or seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which

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relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court

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applies the same standard under § 1915 when reviewing the adequacy of a complaint or an

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amended complaint. When a court dismisses a complaint under § 1915(e), the plaintiff should

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be given leave to amend the complaint with directions as to curing its deficiencies, unless it

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is clear from the face of the complaint that the deficiencies could not be cured by amendment.

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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

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

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

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claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d 756, 759 (9th Cir.

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1999). In making this determination, the court takes as true all allegations of material fact

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stated in the complaint, and the court construes them in the light most favorable to the plaintiff.

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See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996). Allegations of a pro se

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complainant are held to less stringent standards than formal pleadings drafted by lawyers.

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See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the standard under Rule 12(b)(6) does not

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require detailed factual allegations, a plaintiff must provide more than mere labels and

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conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation

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of the elements of a cause of action is insufficient. Id.

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

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because they are no more than mere conclusions, are not entitled to the assumption of truth.”

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Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “While legal conclusions can provide the

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framework of a complaint, they must be supported with factual allegations.” Id. “When there

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are well-pleaded factual allegations, a court should assume their veracity and then determine

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whether they plausibly give rise to an entitlement to relief.” Id. “Determining whether a
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complaint states a plausible claim for relief . . . [is] a context-specific task that requires the

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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

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sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This includes

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claims based on legal conclusions that are untenable (e.g., claims against defendants who are

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immune from suit or claims of infringement of a legal interest which clearly does not exist), as

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well as claims based on fanciful factual allegations (e.g., fantastic or delusional scenarios).

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See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d

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795, 798 (9th Cir. 1991).

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II.

SCREENING OF COMPLAINT

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In the complaint, plaintiff sues defendants state of Nevada and caseworker Levitt for

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events that took place while plaintiff was incarcerated at High Desert State Prison (“HDSP”).

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(ECF No. 1-2 at 1-2). Plaintiff alleges two counts and seeks monetary damages. (Id. at 5, 9).

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The complaint alleges the following: On August 16, 2016, plaintiff spoke to Levitt about

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one of his kites. (Id. at 3). Specifically, plaintiff spoke to Levitt about getting his financial

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certificate executed. (Id.) Levitt responded that the financial certificate form was not an

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NDOC form and, thus, Levitt could not do anything to help plaintiff. (Id.) Plaintiff tried to

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explain that the accounting department or inmate services had to fill out the financial certificate

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and then return it to plaintiff. (Id.) Levitt responded, “Oh well.” (Id.) Levitt violated plaintiff’s

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civil rights by denying plaintiff a “proper paper needed to proceed in forma pauperis in his other

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cases which [were] under threat of being dismissed.” (Id.) Levitt caused plaintiff to worry

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about his other cases “which [have] yet to be filed as they wait for a completed financial

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certificate and could possibly be dismissed.” (Id. at 4). Plaintiff alleges mental anguish (count

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I) and due process in filing court documents (count II). (Id. at 4-5).

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The court interprets the allegations as a claim for denial of access to the courts.

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Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S.

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343, 346 (1996). This right “requires prison authorities to assist inmates in the preparation and

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filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate
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assistance from persons trained in the law.” Bounds v. Smith, 430 U.S. 817, 828 (1977). This

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right, however, “guarantees no particular methodology but rather the conferral of a

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capability—the capability of bringing contemplated challenges to sentences or conditions of

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confinement before the courts.” Lewis, 518 U.S. at 356. It is this “capability, rather than the

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capability of turning pages in a law library, that is the touchstone” of the right of access to the

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courts. Id. at 356-57.

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To establish a violation of the right of access to the courts, a prisoner must establish

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that he or she has suffered an actual injury, a jurisdictional requirement that flows from the

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standing doctrine and may not be waived. Id. at 349. An “actual injury” is “actual prejudice

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with respect to contemplated or existing litigation, such as the inability to meet a filing deadline

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or to present a claim.” Id. at 348. Delays in providing legal materials or assistance that result

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in actual injury are “not of constitutional significance” if “they are the product of prison

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regulations reasonably related to legitimate penological interests.” Id. at 362. The right of

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access to the courts is limited to non-frivolous direct criminal appeals, habeas corpus

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proceedings, and § 1983 actions. Id. at 353 n.3, 354-55.

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The court finds that plaintiff fails to state a colorable claim for denial of access to the

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courts. Plaintiff has not established actual prejudice due to Levitt’s inability to help plaintiff

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acquire a financial certificate from the accounting department or inmate services. Based on

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the allegations, plaintiff had not initiated any lawsuits for the cases he was awaiting financial

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certificates for. As a result, plaintiff’s cases were not at risk of being “dismissed” for lack of a

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financial certificate if plaintiff had never initiated a lawsuit. The court dismisses this claim,

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without prejudice, with leave to amend.

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Plaintiff is granted leave to file an amended complaint to cure the deficiencies of the

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complaint. If plaintiff chooses to file an amended complaint he is advised that an amended

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complaint supersedes (replaces) the original complaint and, thus, the amended complaint

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must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896

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F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original

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complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v.
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Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with

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prejudice, a plaintiff is not required to reallege such claims in a subsequent amended

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complaint to preserve them for appeal). Plaintiff’s amended complaint must contain all claims,

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defendants, and factual allegations that plaintiff wishes to pursue in this lawsuit. Moreover,

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plaintiff must file the amended complaint on this court’s approved prisoner civil rights form and

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it must be entitled “First Amended Complaint.”

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The court notes that if plaintiff chooses to file an amended complaint curing the

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deficiencies, as outlined in this order, plaintiff shall file the amended complaint within thirty (30)

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days from the date of entry of this order. If plaintiff chooses not to file an amended complaint

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curing the stated deficiencies, the court will dismiss this action, with prejudice, for failure to

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state a claim.

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III.

For the foregoing reasons, IT IS ORDERED that a decision on the application to

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proceed in forma pauperis (ECF No. 4) is deferred.
IT IS FURTHER ORDERED that the clerk of the court shall file the complaint (ECF No.

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1-2).
IT IS FURTHER ORDERED that the complaint is dismissed in its entirety, without

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CONCLUSION

prejudice, with leave to amend.

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IT IS FURTHER ORDERED that, if plaintiff chooses to file an amended complaint

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curing the deficiencies of his complaint, as outlined in this order, plaintiff shall file the amended

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complaint within thirty (30) days from the date of entry of this order.

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IT IS FURTHER ORDERED that the clerk of the court shall send to plaintiff the

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approved form for filing a § 1983 complaint, instructions for the same, and a copy of his

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original complaint (ECF No. 1-2). If plaintiff chooses to file an amended complaint, he must

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use the approved form and he shall write the words “First Amended” above the words “Civil

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Rights Complaint” in the caption.

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IT IS FURTHER ORDERED that, if plaintiff fails to file an amended complaint curing the

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deficiencies outlined in this order, this action shall be dismissed, with prejudice, for failure to

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state a claim.

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DATED: This _____ day of May, 2017.
May 18, 2017.

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_________________________________
United States District Judge

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