Clausen v. Nevada Dept of Corrections et al

Filing 7

ORDER that a decision on Plaintiff's IFP Application (ECF No. 4 ) is DEFERRED; Clerk directed to file the Complaint (ECF No. 1 -1); Count I is DISMISSED, with leave to amend by 12/4/2018; Count II is DISMISSED, with prejudice; C lerk directed to send Plaintiff the approved form for filing a § 1983 complaint, instructions, and a copy of the Complaint (ECF No. 1 -1) (Mailed to P on 11/7/2018); a separate screening order will be done by the court if an amended comp laint is filed; if Plaintiff does not timely file a first amended complaint, the Court may dismiss Count I with prejudice without further notice. Signed by Judge Robert C. Jones on 11/6/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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KEVIN CLAUSEN,
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Plaintiff,
v.

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3:17-cv-00522-RCJ-CBC

NEVADA DEPARTMENT OF
CORRECTIONS et al.,

ORDER

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Defendants.
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Plaintiff Kevin Clausen, a prisoner in the custody of the Nevada Department of Corrections

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

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application to proceed in forma pauperis. The matter of the filing fee will be temporarily deferred.

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The Court now screens the Complaint under 28 U.S.C. § 1915A.

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I.

SCREENING STANDARDS

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Federal courts must screen any case in which a prisoner seeks redress from a governmental

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entity or its officers or employees. 28 U.S.C. § 1915A(a). The court must identify cognizable

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claims and dismiss claims that are frivolous or malicious, fail to state a claim, or seek monetary

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relief from an immune defendant. Id. § 1915A(b). This includes claims based on fantastic or

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delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327–28 (1989). Also, when a prisoner

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seeks to proceed without prepayment of fees, a court must dismiss if “the allegation of poverty is

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untrue.” 28 U.S.C. § 1915(e)(2)(A).

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When screening claims for failure to state a claim, a court uses the same standards as under

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Rule 12(b)(6). Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Federal Rule of Civil

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Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is

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entitled to relief” in order to “give the defendant fair notice of what the . . . claim is and the grounds

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upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). A motion to dismiss under Rule

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12(b)(6) tests the complaint’s sufficiency, N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581

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(9th Cir. 1983), and dismissal is appropriate only when the complaint does not give the defendant

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fair notice of a legally cognizable claim and the grounds on which it rests, Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 555 (2007).

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A court treats factual allegations as true and construes them in the light most favorable to

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the plaintiff, NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986), but does not accept as

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true “legal conclusions . . . cast in the form of factual allegations.” Paulsen v. CNF Inc., 559 F.3d

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1061, 1071 (9th Cir. 2009). A plaintiff must plead facts pertaining to his case making a violation

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“plausible,” not just “possible.” Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009) (citing Twombly,

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550 U.S. at 556) (“A claim has facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.”). That is, a plaintiff must not only specify or imply a cognizable legal theory (Conley

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review), he must also allege the facts of his case so that the court can determine whether he has any

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basis for relief under the legal theory he has specified or implied, assuming the facts are as he

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alleges (Twombly-Iqbal review).

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“Generally, a district court may not consider any material beyond the pleadings in ruling on

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a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint

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may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896

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F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents whose contents are

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alleged in a complaint and whose authenticity no party questions, but which are not physically

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attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without

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converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d

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449, 454 (9th Cir. 1994). Also, under Federal Rule of Evidence 201, a court may take judicial

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notice of “matters of public record” if not “subject to reasonable dispute.” United States v.

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Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011). Otherwise, if the district court considers
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materials outside of the pleadings, the motion to dismiss is converted into a motion for summary

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judgment. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

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To state a claim under § 1983, a plaintiff must allege (1) violation of a right secured by the

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Constitution or laws of the United States (2) by a person acting under color of state law. West v.

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Atkins, 487 U.S. 42, 48 (1988).

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II.

ANALYSIS

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On August 8, 2016, Plaintiff attempted to send legal mail for his state habeas corpus case,

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with the attached brass slip # 2138663. Defendant R. Jones accepted the mail and signed and dated

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the brass slip but did not turn it in for processing, in violation of NDOC policies. On September 5,

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Plaintiff sent a letter to the state court asking if his habeas corpus filing had been received. On

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September 15, Plaintiff received a letter from the state court stating that his habeas corpus filing

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had not been received. On October 21, Plaintiff filed an informal grievance regarding the issue.

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On October 21, Plaintiff received a response from Defendant J. Dutton stating: “(See attached

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copies from Legal Mail Log),” but no copies of the Legal Mail Log were attached. Dutton

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knowingly failed to provide copies of the mail log in order to cover up Jones’ actions. Jones’ failure

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to send Plaintiff’s legal mail “caus[ed] irreparable harm to plaintiffs Habeas Corpus proceeding

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(State v. Clausen, # CR-15-0196) as plaintiffs [AEDPA] tolling has expired due to the pursuit of

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this grievance in order to show the courts that ‘good cause’ exists in order to overcome any timebar

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issues.” Plaintiff sues NDOC, Jones, and Dutton for violations of his right to access the courts and

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his right to due process.

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As an initial matter, the Court dismisses the claims as against NDOC, without leave to

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amend. Plaintiff cannot sue the State of Nevada or its agencies in federal court absent a waiver.

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U.S. Const., amend. XI; Hans v. Louisiana, 134 U.S. 1, 10–15 (1890); NRDC v. Cal. Dep’t of

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Trans., 96 F.3d 420, 421 (9th Cir. 1996) (citing P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy,

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Inc., 506 U.S. 139, 142–46 (1993)). The State of Nevada withheld its consent to suit in federal

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court when it made a limited waiver of immunity to suit in its own courts. Nev. Rev. Stat. §

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41.031. Section 5 (the enforcement provision) of the Fourteenth Amendment gave Congress

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some power to abrogate the states’ Eleventh Amendment protection, and Congress immediately
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did so via the Enforcement Act of 1871 (the genesis of § 1983), but the State of Nevada and its

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agencies are not “person[s]” who can be sued under the meaning of that statute. Doe v. Lawrence

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Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997) (citing Will v. Mich. Dep’t of State

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Police, 491 U.S. 58, 70 (1989)). The Court will analyze the merits of the claims as against

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Defendants Jones and Dutton.

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A.

Count I – Access to the Courts

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Plaintiff alleges Jones denied Plaintiff access to the courts by failing to mail his state habeas

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

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

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and 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 right,

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

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capability of bringing contemplated challenges to sentences or conditions of confinement before

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the courts.” Lewis, 518 U.S. at 356. It is this “capability, rather than the capability of turning pages

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in a law library, that is the touchstone” of the right of access to the 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 that he

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

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

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

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claim.” Id. at 348. Delays in providing legal materials or assistance that result in actual injury are

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“not of constitutional significance” if “they are the product of prison regulations reasonably related

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to legitimate penological interests.” Id. at 362. The right of access to the courts is limited to non-

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frivolous direct criminal appeals, habeas corpus proceedings, and § 1983 actions. Id. at 353 n.3,

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354–55.

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Plaintiff has not alleged having lost a non-frivolous civil claim, i.e., one or more claims in

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his state habeas corpus case, due to Defendants’ actions. His allegations are unclear as to whether

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he alleges the loss of his state habeas corpus proceeding, the loss of a federal habeas corpus

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proceeding, or both. The action he identifies (Second Judicial District Court Case CR15-0196) is
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a state court criminal action against him that was closed when he was sentenced in May 2015, not

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a habeas corpus action by him. Perhaps Plaintiff means to allege that he attempted to file a habeas

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corpus action in state court but that it was dismissed as untimely due to Defendants’ interference

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with his mail. But he has not alleged the nature of any non-frivolous claim he meant to pursue,

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which he must do so the Court can assess whether he has alleged harm under Lewis. Perhaps

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Plaintiff means to allege that he had missed the time to file a state habeas corpus action due to

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Defendants’ actions, and therefore did not bother trying to do so, and that the one-year bar under

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AEDPA had run in the meantime such that he lost a potential federal habeas corpus claim. But

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again, Plaintiff has not alleged the nature of any non-frivolous claim he meant to pursue. And

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Plaintiff could have filed an unexhausted federal habeas corpus petition under 28 U.S.C. § 2254

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and obtained a stay and abeyance while he exhausted his state habeas corpus remedies. The Court

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takes judicial notice of its own docket, which indicates Plaintiff has never filed a § 2254 petition in

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this Court. Plaintiff also could have filed—and presumably still could file—a federal habeas corpus

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petition after defaulting on his state habeas corpus remedies, arguing that Defendants’ interference

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with his mail constitutes cause and prejudice excusing the default. There appears never to have

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been any judicial determination that a putative § 2254 petition is barred by AEDPA due to an

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unexcused default in state court.

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The Court dismisses this claim, with leave to amend. Upon amendment, Plaintiff must

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clearly indicate the procedural history of any state or federal habeas corpus petitions he has filed,

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as well as the nature of the underlying claim(s) in the state court habeas corpus petition he submitted

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to Defendants that they failed to forward.

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B.

Count II – Due Process

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Plaintiff alleges Dutton violated Plaintiff’s due process rights when he knowingly failed to

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attach the mail log to Plaintiff’s grievance response. Prisoners have no stand-alone due process

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rights related to the administrative grievance process. Mann v. Adams, 855 F.2d 639, 640 (9th Cir.

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1988); Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003). Plaintiff fails to state a due process

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claim against Dutton. Count II is dismissed with prejudice, as amendment would be futile.

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C.

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Plaintiff may attempt to amend Count I. An amended complaint supersedes (replaces)

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previous versions of a complaint, so an amended complaint must be complete in itself. See Lacey

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Amendment

v. Maricopa Cnty., 693 F.3d 896, 907 n.1 (9th Cir. 2012); Hal Roach Studios, Inc. v. Richard Feiner
& Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989). Plaintiff must file the first amended complaint

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on this Court’s approved prisoner civil rights form, and it must be entitled “First Amended
Complaint.” Plaintiff must file the first amended complaint within twenty-eight (28) days from the
date of this Order, or the Court may dismiss Count I with prejudice without further notice.

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CONCLUSION
IT IS HEREBY ORDERED that a decision on the Application to Proceed in Forma Pauperis
(ECF No. 4) is DEFERRED.
IT IS FURTHER ORDERED that the Clerk shall file the Complaint (ECF No. 1-1).

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IT IS FURTHER ORDERED that Count I is DISMISSED, with leave to amend within
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twenty-eight (28) days of this Order.

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IT IS FURTHER ORDERED that the Count II is DISMISSED, with prejudice.

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IT IS FURTHER ORDERED that the Clerk shall send Plaintiff the approved form for filing

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a § 1983 complaint, instructions, and a copy of the Complaint (ECF No. 1-1). Plaintiff must use

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the approved form and write the words “First Amended” above the words “Civil Rights Complaint”

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in the caption. The Court will screen the amended complaint in a separate screening order, which

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may take several months. If Plaintiff does not timely file a first amended complaint, the Court may
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dismiss Count I with prejudice without further notice.
IT IS SO ORDERED.
DATED: This 6th day of November, 2018.
Dated this 10th day of September, 2018.
_________________________________
ROBERT C. JONES
United States District Judge
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