Hogg v. Cox et al

Filing 19

ORDER giving Plaintiff 30 days to file amended complaint curing deficiencies of complaint; directing Clerk to send Plaintiff 1983 form, instructions, copy of ECF No. 5 Complaint, copy of ECF No. 4 Screening Order, and copy of ECF No. 15 USCA Memorandum (attached hereto for transmittal to P). If Plaintiff chooses not to file amended complaint, action will be dismissed with prejudice for failure to state a claim. Signed by Judge Robert C. Jones on 10/18/2016. (Attachments: # 1 1983 Form, # 2 1983 Form Instructions, # 3 Complaint, # 4 Screening Order, # 5 USCA Memorandum) (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ROOSEVELT MAURICE HOGG,

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Plaintiff,
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v.
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NDOC DIRECTOR COX et al.,
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Defendants.
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___________________________________ )

3:15-cv-158-RCJ-WGC
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, 1-1). The Court now screens

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Plaintiff’s civil rights complaint pursuant 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).

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In addition to the screening requirements under § 1915A, pursuant to the Prison
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 multiple defendants for events that took place while

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Plaintiff was incarcerated at High Desert State Prison (“HDSP”). (ECF No. 1-1 at 1). Plaintiff

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sues Defendants Corrections Counselor Ritz, Corrections Counselor Russell, NDOC Director

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Cox, Acting Warden J. Nash, and Warden Nevin. (Id. at 2-3). Plaintiff alleges three counts

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and seeks monetary damages and the removal of his name from any sex offender database.

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(Id. at 6, 9).

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The complaint alleges the following: On May 13, 2014, Plaintiff was sentenced to

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prison for possession of the sale of narcotics. (Id. at 3). On May 30, 2014, Plaintiff entered

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the NDOC. (Id.). On June 18, 2014, Plaintiff stood before a two-man classification where he

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was told to sign a form of paper that informed him that he was being classified as a sexual

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offender for a 1983 arrest for rape by force out of Alameda County, California. (Id.). Plaintiff

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was not convicted of rape and states that he never raped anyone and has never committed

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a sexual offense crime against anyone. (Id.). All of the charges in that case were dismissed.

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(Id.).

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In Count I, Plaintiff alleges due process violations against Cox because Plaintiff does

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not have any sex crime convictions. (Id. at 4). Nash violated Plaintiff’s due process rights

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because she approved the illegal classification of sex offender in the database. (Id.). Russell

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and Ritz violated Plaintiff’s due process rights because they illegally entered Plaintiff as a sex

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offender in the computer database. (Id.). In Count II, Plaintiff alleges that Cox, Nash, Russell,
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and Ritz defamed him by illegally classifying Plaintiff as a sex offender in the computer

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database. (Id. at 5). In Count III, Plaintiff alleges that Cox, Nash, Russell, and Ritz slandered

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Plaintiff by classifying him and entering him as a sex offender in the computer database. (Id.

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at 6).

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In Neal v. Shimoda, 131 F.3d 818 (9th Cir. 1997), the Ninth Circuit detailed what

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process prison officials must give an inmate when classifying that inmate as a sex offender.

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Id. at 830. The Ninth Circuit held that the prisoner must receive: (1) a prior hearing with the

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ability to call witnesses and present documentary evidence in his defense; (2) advance written

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notice of the prior hearing; and (3) a written statement by the fact-finder of the evidence relied

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on and the reasons for the inmate’s classification as a sex offender.

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Id. at

830-31;

Kritenbrink v. Crawford, 457 F.Supp.2d 1139, 1149-50 (D. Nev. 2006).

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The Court dismisses the due process claim with prejudice as amendment would be

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futile. Based on the allegations, Plaintiff was given procedural due process protections before

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the NDOC classified him as a sex offender. Based on the allegations, Plaintiff had a hearing

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and was informed of the evidence relied on for classifying Plaintiff as a sex offender. It

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appears that Plaintiff’s true grievance is with the result of the classification hearing and not with

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the procedural due process protections given at the classification hearing. As such, Plaintiff

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fails to state a claim for due process violations.

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The Court dismisses the state law claims for defamation and slander, without prejudice,

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based on lack of supplemental jurisdiction because Plaintiff has failed to state a federal cause

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of action. See 28 U.S.C. § 1367(c) (stating that a district court may decline to exercise

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supplemental jurisdiction over a claim if the district court has dismissed all claims over which

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it has original jurisdiction).

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III.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that Plaintiff's application to proceed in

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forma pauperis (ECF No. 1) without having to prepay the full filing fee is GRANTED. Plaintiff

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shall not be required to pay an initial installment fee. Nevertheless, the full filing fee shall still

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be due, pursuant to 28 U.S.C. § 1915, as amended by the Prisoner Litigation Reform Act. The
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movant herein is permitted to maintain this action to conclusion without the necessity of

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prepayment of fees or costs or the giving of security therefor. This order granting in forma

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pauperis status shall not extend to the issuance and/or service of subpoenas at government

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expense.

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IT IS FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915, as amended by the

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Prisoner Litigation Reform Act, the Nevada Department of Corrections shall pay to the Clerk

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of the United States District Court, District of Nevada, 20% of the preceding month's deposits

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to the account of Roosevelt Maurice Hogg, #1121037 (in months that the account exceeds

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$10.00) until the full $350 filing fee has been paid for this action. The Clerk shall send a copy

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of this order to the attention of Albert G. Peralta, Chief of Inmate Services for the Nevada

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Department of Prisons, P.O. Box 7011, Carson City, NV 89702.

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IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise

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unsuccessful, the full filing fee shall still be due, pursuant to 28 U.S.C. §1915, as amended by

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the Prisoner Litigation Reform Act.
IT IS FURTHER ORDERED that the Clerk of the Court shall file the complaint (ECF No.

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1-1).

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IT IS FURTHER ORDERED that the complaint is dismissed in its entirety for failure to

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state a claim. Count I, alleging due process violations, is dismissed with prejudice as

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amendment would be futile. Counts II and III, alleging state law claims, are dismissed for lack

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of supplemental jurisdiction.

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IT IS FURTHER ORDERED that this Court certifies that any in forma pauperis appeal
from this order would be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3).
IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment
accordingly.

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Dated this 6th day of July, 2015.
DATED: This _____ day of July, 2015.
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United States District Judge
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