Sledge v. Allen et al

Filing 3

ORDER - IFP Application (ECF No. 1 ) is GRANTED. NDOC shall pay Clerk $350 filing fee from inmate account. Clerk shall SEND a copy of this order to Finance and to NDOC Inmate Services (Email (NEF) to Finance; copy mailed to NDOC, 1/7/2020).Clerk is directed to file the Complaint (ECF No. 1 -1) and send Plaintiff a copy (Mailed to Plaintiff on 1/7/2020). Counts are dismissed, or will proceed, as specified herein.Clerk will issue summonses for Defendants Chuck Allen, Marsha Berkbigler, Vaughn Hartung, Jeanne Herman, Kitty Jung, and Bob Lucey and deliver to USM with copies of the Complaint (ECF No. 1 -1) and this order for service on Defendant(s) (Delivered to USM 1/7/2020).Clerk will send Plaintif f six USM-285 forms and Plaintiff will have 30 days within which to furnish the USM the required USM-285 forms with relevant information as to each Defendant on each form (Mailed forms to Plaintiff on 1/7/2020).Within 20 days after receiving from USM a copy of the USM-285 forms, Plaintiff must file a notice with the Court identifying which Defendant(s) were served and which were not, if any.Plaintiff will serve upon Defendants a copy of every pleading, motion or other document submitted for consideration by the court. (See Order for Additional Details) . Signed by Chief Judge Miranda M. Du on 1/7/2020. (Copies have been distributed pursuant to the NEF - AB)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5
AARON SLEDGE,

Case No. 3:19-cv-00181-MMD-CLB

6
Plaintiff,
8

SCREENING ORDER

v.

7

CHUCK ALLEN, et al.,
Defendants.

9
10
11

Plaintiff, who is incarcerated in the custody of the Nevada Department of

12

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

13

and has filed an application to proceed in forma pauperis. (ECF Nos. 1, 1-1.) The Court

14

now screens Plaintiff’s civil rights complaint pursuant to 28 U.S.C. § 1915A.

15

I.

IN FORMA PAUPERIS APPLICATION

16

Before the Court is Plaintiff’s application to proceed in forma pauperis. (ECF No.

17

1.) Based on the information he provided regarding Plaintiff’s financial status, the Court

18

finds that Plaintiff is not able to pay an initial installment payment toward the full filing fee

19

pursuant to 28 U.S.C. § 1915. Plaintiff will, however, be required to make monthly

20

payments toward the full $350.00 filing fee when he has funds available.

21

II.

SCREENING STANDARD

22

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

23

incarcerated person seeks redress from a governmental entity or officer or employee of

24

a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the Court must identify

25

any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a

26

claim upon which relief may be granted, or seek monetary relief from a defendant who is

27

immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be

28

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

1

1990). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential

2

elements: (1) the violation of a right secured by the Constitution or laws of the United

3

States, and (2) that the alleged violation was committed by a person acting under color

4

of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).

5

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

6

Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s

7

claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails

8

to state a claim on which relief may be granted, or seeks monetary relief against a

9

defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a

10

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

11

Federal Rule of Civil Procedure 12(b)(6), and the Court applies the same standard under

12

§ 1915 when reviewing the adequacy of a complaint or an amended complaint. When a

13

court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend

14

the complaint with directions as to curing its deficiencies, unless it is clear from the face

15

of the complaint that the deficiencies could not be cured by amendment. See Cato v.

16

United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

17

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

18

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

19

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

20

support of the claim that would entitle him or her to relief. See Morley v. Walker, 175 F.3d

21

756, 759 (9th Cir. 1999). In making this determination, the Court takes as true all

22

allegations of material fact stated in the complaint, and the Court construes them in the

23

light most favorable to the plaintiff. See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th

24

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

25

formal pleadings drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9 (1980). While

26

the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff

27

must provide more than mere labels and conclusions. See Bell Atl. Corp. v. Twombly,

28

2

1

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

2

insufficient. See id.

3

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

4

that, because they are no more than mere conclusions, are not entitled to the assumption

5

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

6

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

7

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

8

determine whether they plausibly give rise to an entitlement to relief.” Id. “Determining

9

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

10

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

11

Finally, all or part of a complaint filed by an incarcerated person may therefore be

12

dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact.

13

This includes claims based on legal conclusions that are untenable (e.g., claims against

14

defendants who are immune from suit or claims of infringement of a legal interest which

15

clearly does not exist), as well as claims based on fanciful factual allegations (e.g.,

16

fantastic or delusional scenarios). See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989);

17

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

18

III.

SCREENING OF COMPLAINT

19

In the Complaint, Plaintiff sues multiple defendants for events that took place while

20

Plaintiff was incarcerated at the Washoe County Detention Facility (“WCDF”). (ECF No.

21

1-1 at 1.) Plaintiff sues Defendants Sheriff Chuck Allen and Washoe County

22

Commissioners Marsha Berkbigler, Vaughn Hartung, Jeanne Herman, Kitty Jung, and

23

Bob Lucey. (Id. at 2-3.) Plaintiff alleges four counts and seeks declaratory, injunctive, and

24

monetary relief.1 (Id. at 8, 12.)

25

The Complaint alleges the following. While at the WCDF, Plaintiff was a pretrial

26

detainee representing himself during his criminal trial. (Id. at 4.) Plaintiff was unable to file

27

a timely motion for mistrial based on legitimate grounds because the WCDF had no legal

28
1Inmate

John Quintero helped Plaintiff prepare the Complaint. (ECF No. 1-1 at 13.)
3

1

materials. (Id. at 5.) Jail officials instructed Plaintiff to access legal materials through

2

Washoe Legal Services but Washoe Legal Services only issues advice on civil matters.

3

(Id.)

4

On November 24, 2017, Plaintiff learned that jail officials provided federal pretrial

5

detainees on ICE holds access to a mobile information station with law library access but

6

would not provide the same information to state pretrial detainees. (Id. at 6.) The county

7

commissioners were in charge of funding. (Id. at 7.) The WCDF had an administrative

8

process that failed to provide any meaningful procedures to remedy complaints and made

9

it difficult for inmates to seek the assistance of non-governmental entities. (Id. at 8.)

10

In Count I, Plaintiff alleges First Amendment violations because there was no law

11

library and Defendants tried to push legal research onto the Washoe County Public

12

Defender’s Office without any funding. (Id. at 5.) In Count II, Plaintiff alleges Fourteenth

13

Amendment equal protection violations because jail officials provided federal pretrial

14

detainees access to a law library but did not do the same for state pretrial detainees. (Id.

15

at 6.) In Count III, Plaintiff alleges violations of the U.S. Constitution based on lack of

16

access to the courts. (Id. at 7.) In Count IV, Plaintiff alleges First and Fourteenth

17

Amendment violations based on the right to “redress grievances.” (Id. at 8.)

18

In viewing the allegations in the light most favorable to Plaintiff, it appears that

19

Plaintiff was a pretrial detainee who was attempting to represent himself at his criminal

20

trial. The Court finds that Plaintiff’s allegations are construed as a Sixth Amendment claim

21

for the right to self-representation in a criminal case rather than a Fourteenth Amendment

22

claim for denial of access to the courts. The right of access to the courts is limited to non-

23

frivolous direct criminal appeals, habeas corpus proceedings, and § 1983 actions. See

24

Lewis v. Casey, 518 U.S. 343, 353 n.3, 354-55 (1996). The Court construes Plaintiff’s

25

allegations as claims for Sixth Amendment right to self-representation (Counts I, III),

26

Fourteenth Amendment equal protection (Count II), and Fourteenth Amendment due

27

process (Count IV).

28

4

1

A.

2

The Court interprets Counts I and III as claims for violations of Plaintiff’s Sixth

3

Amendment right to self-representation because Plaintiff was a criminal defendant at the

4

time of the events. In Faretta v. California, 422 U.S. 806 (1975), the U.S. Supreme Court

5

recognized a criminal defendant’s Sixth Amendment right to self-representation. See id.

6

at 807. The Ninth Circuit has held that “the right to self-representation necessarily

7

includes and is premised upon the right of the defendant to prepare a defense.” See

8

Taylor v. List, 880 F.2d 1040, 1047 (9th Cir. 1989). “An incarcerated defendant may not

9

meaningfully exercise his right to represent himself without access to law books,

10

Right to Self-Representation (Counts I, III)

witnesses, or other tools to prepare a defense.” Id.

11

The Court finds that Plaintiff states a colorable right to self-representation claim.

12

Based on the allegations, while Plaintiff was representing himself,2 he was unable to

13

conduct any legal research during his criminal trial because the WCDF did not have a law

14

library. For screening purposes, this claim will proceed against Defendants Allen,

15

Berkbigler, Hartung, Herman, Jung, and Lucey. See Pouncil v. Tilton, 704 F.3d 568, 576

16

(9th Cir. 2012) (holding that a supervisor could be a proper defendant for a claim for

17

prospective injunctive relief from a regulation because the supervisor would be

18

responsible for ensuring that injunctive relief was carried out, even if he was not

19

personally involved in the decision giving rise to the plaintiff’s claims).

20

B.

Equal Protection (Count II)

21

The Equal Protection Clause of the Fourteenth Amendment is essentially a

22

direction that all similarly situated persons be treated equally under the law. See City of

23

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In order to state an

24

equal protection claim, a plaintiff must allege facts demonstrating that defendants acted

25

with the intent and purpose to discriminate against him based upon membership in a

26
27
28

2By

taking Plaintiff’s allegations as true, it appears that Plaintiff was representing
himself during his criminal trial. (ECF No. 1-1 at 4.) However, the Court notes that Plaintiff
attaches exhibits to his Complaint that indicate that, at some point during his criminal
proceedings, he had appointed counsel from both the Washoe County Public Defender’s
Office and Washoe County Alternate Public Defender’s Office. (Id. at 21, 29-30.)
5

1

protected class, or that defendants purposefully treated him differently than similarly

2

situated individuals without any rational basis for the disparate treatment. See Lee v. City

3

of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001); see also Vill. of Willowbrook v. Olech,

4

528 U.S. 562, 564 (2000).

5

For screening purposes, the Court finds that Plaintiff states a colorable equal

6

protection claim. Based on the allegations, jail officials treated federal and state pretrial

7

detainees differently with respect to law library access without any rational basis. This

8

claim will proceed against Defendants Allen, Berkbigler, Hartung, Herman, Jung, and

9

Lucey.

10

C.

Due Process (Count IV)

11

The Court interprets Count IV as attempting to state a due process claim based on

12

how jail officials responded to Plaintiff’s grievances. The Court finds that Plaintiff fails to

13

state a claim. Inmates have no stand-alone due process rights related to the

14

administrative grievance process. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)

15

(holding that a state’s unpublished policy statements establishing a grievance procedure

16

do not create a constitutionally protected liberty interest); Ramirez v. Galaza, 334 F.3d

17

850, 860 (9th Cir. 2003) (holding that there is no liberty interest in the processing of

18

appeals because there is no liberty interest entitling inmates to a specific grievance

19

process). As such, the Court dismisses the due process claim with prejudice as

20

amendment would be futile.

21

IV.

CONCLUSION

22

It is therefore ordered that Plaintiff’s application to proceed in forma pauperis (ECF

23

No. 1) without having to prepay the full filing fee is granted. Plaintiff will not be required to

24

pay an initial installment fee. Nevertheless, the full filing fee will still be due, pursuant to

25

28 U.S.C. § 1915, as amended by the PLRA. The movant herein is permitted to maintain

26

this action to conclusion without the necessity of prepayment of fees or costs or the giving

27

of security therefor. However, this order granting in forma pauperis status will not extend

28

to the issuance and/or service of subpoenas at government expense.

6

1

It is further ordered that, pursuant to 28 U.S.C. § 1915, as amended by the PLRA,

2

the Nevada Department of Corrections will pay to the Clerk of the United States District

3

Court, District of Nevada, 20% of the preceding month’s deposits to the account of Aaron

4

Sledge, #93404 (in months that the account exceeds $10.00) until the full $350 filing fee

5

has been paid for this action. The Clerk of Court will send a copy of this order to the

6

Finance Division of the Clerk’s Office. The Clerk of Court will also send a copy of this

7

order to the attention of Chief of Inmate Services for the Nevada Department of

8

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

9

It is further ordered that, even if this action is dismissed, or is otherwise

10

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

11

by the PLRA.
The Clerk of Court is further directed to file the Complaint (ECF No. 1-1) and send

12
13

Plaintiff a courtesy copy.

14

It is further ordered that Counts I and III, alleging violations of the Sixth Amendment

15

right to self-representation, will proceed against Defendants Allen, Berkbigler, Hartung,

16

Herman, Jung, and Lucey.

17

It is further ordered that Count II, alleging Fourteenth Amendment equal protection

18

violations, will proceed against Defendants Allen, Berkbigler, Hartung, Herman, Jung, and

19

Lucey.

20
21

It is further ordered that Count IV, alleging Fourteenth Amendment due process
violations, is dismissed with prejudice as amendment would be futile.

22

It is further ordered that the Clerk of Court will issue summonses for Defendants

23

Chuck Allen, Marsha Berkbigler, Vaughn Hartung, Jeanne Herman, Kitty Jung, and Bob

24

Lucey, and deliver the same, to the U.S. Marshal for service. The Clerk of Court will also

25

send sufficient copies of the Complaint (ECF No. 1-1) and this order to the U.S. Marshal

26

for service on Defendant(s).

27
28

7

1

It is further ordered that the Clerk of Court will send to Plaintiff six USM-285 forms.

2

Plaintiff will have 30 days within which to furnish to the U.S. Marshal the required USM-

3

285 forms with relevant information as to each Defendant on each form.

4

It is further ordered that within 20 days after receiving from the U.S. Marshal a copy

5

of the USM-285 forms showing whether service has been accomplished, Plaintiff must

6

file a notice with the Court identifying which Defendant(s) were served and which were

7

not served, if any. If Plaintiff wishes to have service again attempted on an unserved

8

Defendant(s), then a motion must be filed with the Court identifying the unserved

9

Defendant(s) and specifying a more detailed name and/or address for said Defendant(s),

10

or whether some other manner of service should be attempted.

11

It is further ordered that henceforth, Plaintiff will serve upon Defendants or, if

12

appearance has been entered by counsel, upon the attorney(s), a copy of every pleading,

13

motion or other document submitted for consideration by the Court. Plaintiff will include

14

with the original paper submitted for filing a certificate stating the date that a true and

15

correct copy of the document was mailed to the Defendants or counsel for the

16

Defendants. The Court may disregard any paper received by a district judge or magistrate

17

judge which has not been filed with the Clerk of Court, and any paper received by a district

18

judge, magistrate judge or the Clerk of Court which fails to include a certificate of service.

19

DATED THIS 7th day of January 2020.

20
21
22

MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

23
24
25
26
27
28

8