Denham Jr v. Dzurenda et al

Filing 7

ORDER. IT IS ORDERED that 5 the application to proceed in forma pauperis for non-prisoners is denied as moot. IT IS FURTHER ORDERED that the clerk of the court file 1 -1 the complaint. IT IS FURTHER ORDERED that the court dismisses the compl aint in its entirety, without prejudice, for lack of subject-matter jurisdiction. IT IS FURTHER ORDERED that the clerk of the court close this case and enter judgment accordingly. Signed by Judge James C. Mahan on 1/9/2019. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ROBERT C. DENHAM JR.,

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Plaintiff

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Case No. 2:18-cv-00163-JCM-VCF
SCREENING ORDER

v.
JAMES DZURENDA et al.,

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Defendants

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Plaintiff, a former Nevada Department of Corrections (“NDOC”) inmate, has

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

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to proceed in forma pauperis for non-prisoners. (ECF Nos. 1-1, 5). Plaintiff resides in

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Missouri. (See ECF No. 1-1 at 1). The court now screens plaintiff’s civil rights complaint

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pursuant to 28 U.S.C. § 1915.

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I.

SCREENING STANDARD

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“[T]he court shall dismiss the case at any time if the court determines that . . . the

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action or appeal (i) is frivolous or malicious; (ii) fails to state a claim upon which relief may

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be granted; or (iii) seeks monetary relief against a defendant who is immune from such

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relief.” 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). This provision applies to all actions filed in forma

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pauperis, whether or not the plaintiff is incarcerated. See Lopez v. Smith, 203 F.3d 1122,

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1129 (9th Cir. 2000); see also Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (per curiam).

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Dismissal of a complaint for failure to state a claim upon which relief may be

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granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and 28 U.S.C. §

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1915(e)(2)(B)(ii) tracks that language. Thus, when reviewing the adequacy of a complaint

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under 28 U.S.C. § 1915(e)(2)(B)(ii), the court applies the same standard as is applied

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under Rule 12(b)(6). See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“The

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standard for determining whether a plaintiff has failed to state a claim upon which relief

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can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil

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Procedure 12(b)(6) standard for failure to state a claim.”). Review under 12(b)(6) is

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essentially a ruling on a question of law. See Chappel v. Lab. Corp. of Am., 232 F.3d 719,

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723 (9th Cir. 2000).

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In reviewing the complaint under this standard, the court must accept as true the

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allegations, construe the pleadings in the light most favorable to the plaintiff, and resolve

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all doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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Allegations in pro se complaints are “held to less stringent standards than formal

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pleadings drafted by lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotation

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marks and citation omitted).

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A complaint must contain more than a “formulaic recitation of the elements of a

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cause of action,” it must contain factual allegations sufficient to “raise a right to relief

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above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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“The pleading must contain something more . . . than . . . a statement of facts that merely

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creates a suspicion [of] a legally cognizable right of action.” Id. (quoting 5 C. Wright & A.

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Miller, Federal Practice & Procedure § 1216, at 235-36 (3d ed. 2004)). At a minimum, a

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plaintiff should state “enough facts to state a claim to relief that is plausible on its face.”

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Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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“A pro se litigant must be given leave to amend his or her complaint, and some

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notice of its deficiencies, unless it is absolutely clear that the deficiencies of the complaint

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could not be cured by amendment.” Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.

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1995).

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II.

SCREENING OF COMPLAINT

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In the complaint, plaintiff sues defendants NDOC employees James Dzurenda,

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David Tristan, Dwayne Dell, Shelly Williams, and John Does for events that took place

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after plaintiff’s release from prison. (ECF No. 1-1 at 1, 3-4). Plaintiff alleges four counts

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and seeks monetary damages “in excess of ten thousand dollars.” (Id. at 16-17).

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The complaint alleges the following: After release from prison, plaintiff attempted

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to seal his criminal records pursuant to Nevada state law. (Id. at 7-8). Plaintiff’s petition

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to seal was heard in state court. (Id. at 8). The state court judge provided the parties

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time to file supplemental briefs on the issue. (Id. at 8-9). Plaintiff contacted NDOC

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employees at the offender management division in an attempt to acquire parole discharge

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and sentence expiration documents. (Id. at 9). In correspondence with Williams, plaintiff

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specifically told her that he needed the NDOC to provide him with a written document

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explaining his “total statutory credits deduction” as applied to his particular sentence

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structure.

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necessary to seal his criminal record. (Id. at 11). Plaintiff was unable to obtain a report

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that contained a numeric analysis of plaintiff’s “flat-time, good-time, and meritorious

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credits deduction from the maximum term imposed by the ‘judgment of conviction,’ for the

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(Id. at 10).

Plaintiff also corresponded with Dell to get the documents

purpose of sealing his criminal record.” (Id. at 12).

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Plaintiff sues defendants for: (1) negligence and the “rights guaranteed by the Fifth

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and Fourteenth Amendments”; (2) breach of employment duty and the “rights guaranteed

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by the Fifth and Fourteenth Amendments”; (3) intentional infliction of emotional distress

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and violations of the Fifth, Eighth, Ninth, and Fourteenth Amendments; and (4) fraud. (Id.

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at 7, 12-13, 15-16).

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As an initial matter, the court will address subject-matter jurisdiction in this case.

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The basic statutory grants of federal-court subject-matter jurisdiction are contained in 28

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U.S.C. §§ 1331 and 1332. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). Section

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1331 provides for federal-question jurisdiction and § 1332 provides for diversity of

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citizenship jurisdiction. Id. “A plaintiff properly invokes § 1331 jurisdiction when she

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pleads a colorable claim ‘arising under’ the Constitution or laws of the United States.” Id.

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“She invokes § 1332 jurisdiction when she presents a claim between parties of diverse

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citizenship that exceeds the required jurisdictional amount, currently $75,000.”

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“[W]hen a federal court concludes that it lacks subject-matter jurisdiction, the court must

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dismiss the complaint in its entirety.” Id. at 514. The court now addresses both federal-

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question and diversity jurisdiction in this case.

Id.

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A.

Federal-question Jurisdiction

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Federal district courts have “original jurisdiction of all civil actions arising under the

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Constitution, laws, or treaties of the United States.” 28 U.S.C.A. § 1331. “The presence

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or absence of federal-question jurisdiction is governed by the ‘well-pleaded complaint

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rule,’ which provides that federal jurisdiction exists only when a federal question is

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presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v.

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Williams, 482 U.S. 386, 392 (1987).

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The court finds that there is no federal-question jurisdiction in this case. Although

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plaintiff lists the Fifth, Eighth, Ninth, and Fourteenth Amendments in his complaint, plaintiff

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does not allege any facts that would support violations of any of those amendments. (See

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ECF No. 1-1 at 12, 15-16). As such, this action lacks federal-question subject-matter

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jurisdiction.

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B.

Diversity Jurisdiction

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Federal district courts have “original jurisdiction of all civil actions where the matter

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in controversy exceeds the sum or value of $75,000” and is between citizens of different

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states. 28 U.S.C. § 1332(a)(1). When a plaintiff brings a case to federal court, it must

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“appear to a legal certainty” that the plaintiff’s claim is really for less than the jurisdictional

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amount to justify dismissal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citing

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St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).

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The court finds that there is no diversity jurisdiction in this case. Even if plaintiff

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and defendants are citizens of different states, plaintiff has not satisfied the $75,000

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amount-in-controversy requirement. Plaintiff’s complaint only states that this case is

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worth “in excess” of $10,000 which is insufficient to satisfy the amount in controversy.

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Moreover, the court finds that, to a legal certainty, plaintiff’s claims for being unable to

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obtain specific documents from the NDOC will not satisfy the $75,000 amount-in-

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controversy requirement. As such, the court dismisses this case, without prejudice, for

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lack of subject-matter jurisdiction. If plaintiff wishes to pursue his state law claims for

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negligence, breach of employment duty, intentional infliction of emotional distress, and

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fraud, he should file a complaint in state court.

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III.

CONCLUSION
For the foregoing reasons, it is ordered that the application to proceed in forma

pauperis for non-prisoners (ECF No. 5) is denied as moot.

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It is further ordered that the clerk of the court file the complaint (ECF No. 1-1).

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It is further ordered that the court dismisses the complaint in its entirety, without

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prejudice, for lack of subject-matter jurisdiction.
It is further ordered that the clerk of the court close this case and enter judgment
accordingly.

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January 9, day of
DATED THIS ____2019. December 2018.

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UNITED STATES DISTRICT JUDGE

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