1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * * 7 ALEC WILLIAMS, JR., Case No. 2:18-cv-01286-RFB-EJY 8 Plaintiff, SCREENING ORDER 9 v. 10 STATE OF NEVADA et al., 11 Defendants. 12 13 Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”), 14 has submitted a civil rights complaint pursuant to

and has filed an 15 application to proceed in forma pauperis. ECF Nos. 1, 1-1. The Court now screens 16 Plaintiff’s civil rights complaint pursuant to 28 U.S.C. § 1915A. 17 I. IN FORMA PAUPERIS APPLICATION 18 Plaintiff’s application to proceed in forma pauperis is granted. ECF No. 1. Based 19 on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not 20 able to pay an initial installment payment toward the full filing fee pursuant to

1915. Plaintiff will, however, be required to make monthly payments toward the full 22 $350.00 filing fee when he has funds available. 23 II. SCREENING STANDARD 24 Federal courts must conduct a preliminary screening in any case in which a 25 prisoner seeks redress from a governmental entity or officer or employee of a 26 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 27 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 28 upon which relief may be granted or seek monetary relief from a defendant who is immune 1 from such relief. See 28 U.S.C. § 1915A(b)(1),(2). Pro se pleadings, however, must be 2 liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). 3 To state a claim under

, a plaintiff must allege two essential elements: 4 (1) the violation of a right secured by the Constitution or laws of the United States, and 5 (2) that the alleged violation was committed by a person acting under color of state law. 6 See West v. Atkins,

(1988). 7 In addition to the screening requirements under § 1915A, pursuant to the Prison 8 Litigation Reform Act (PLRA), a federal court must dismiss a prisoner’s claim, if “the 9 allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a 10 claim on which relief may be granted, or seeks monetary relief against a defendant who 11 is immune from such relief.”

(e)(2). Dismissal of a complaint for failure 12 to state a claim upon which relief can be granted is provided for in Federal Rule of Civil 13 Procedure 12(b)(6), and the court applies the same standard under § 1915 when 14 reviewing the adequacy of a complaint or an amended complaint. When a court 15 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the 16 complaint with directions as to curing its deficiencies, unless it is clear from the face of 17 the complaint that the deficiencies could not be cured by amendment. See Cato v. United 18 States,

(9th Cir. 1995). 19 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 20 Chappel v. Lab. Corp. of America,

(9th Cir. 2000). Dismissal for failure 21 to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 22 support of the claim that would entitle him or her to relief. See Morley v. Walker,

(9th Cir. 1999). In making this determination, the Court takes as true all 24 allegations of material fact stated in the complaint, and the court construes them in the 25 light most favorable to the plaintiff. See Warshaw v. Xoma Corp.,

(9th 26 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 27 formal pleadings drafted by lawyers. See Hughes v. Rowe,

(1980). While 28 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 1 must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 2

(2007). A formulaic recitation of the elements of a cause of action is 3 insufficient.

4 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 5 that, because they are no more than mere conclusions, are not entitled to the assumption 6 of truth.” Ashcroft v. Iqbal,

(2009). “While legal conclusions can 7 provide the framework of a complaint, they must be supported with factual allegations.” 8

“When there are well-pleaded factual allegations, a court should assume their veracity 9 and then determine whether they plausibly give rise to an entitlement to relief.”

10 “Determining whether a complaint states a plausible claim for relief . . . [is] a context- 11 specific task that requires the reviewing court to draw on its judicial experience and 12 common sense.”

13 Finally, all or part of a complaint filed by a prisoner may therefore be dismissed 14 sua sponte if the prisoner’s claims lack an arguable basis either in law or in fact. This 15 includes claims based on legal conclusions that are untenable (e.g., claims against 16 defendants who are immune from suit or claims of infringement of a legal interest which 17 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 18 fantastic or delusional scenarios). See Neitzke v. Williams,

(1989); 19 see also McKeever v. Block,

(9th Cir. 1991). 20 III. SCREENING OF COMPLAINT 21 In the complaint, Plaintiff sues multiple defendants for events that took place while 22 Plaintiff was incarcerated at High Desert State Prison (“HDSP”). ECF No. 1-1 at 1. 23 Plaintiff sues Defendants State of Nevada, Nevada Department of Corrections, Offender 24 Management Division, Warden Brian Williams, and James Dzurenda. Id. at 2-3. Plaintiff 25 alleges one count and seeks monetary damages.1 Id. at 5, 9. 26 / / / 27 28 1 Inmate Daryl E. Gholson helped Plaintiff prepare the complaint. (ECF No. 1-1 at 9). 1 The complaint alleges that Defendants knew or should have known that they 2 should have been applying NRS § 209.4465(7)(b) to Plaintiff’s minimum sentence, thus, 3 making him eligible for parole sooner. Id. at 3, 5. Plaintiff alleges Fourteenth Amendment 4 due process and equal protection violations. Id. at 5. 5 As an initial matter, the Court recognizes that Plaintiff is challenging Defendants’ 6 failure to apply good time credits to Plaintiff’s minimum sentence and parole eligibility date 7 as directed by NRS § 209.4465(7). NRS § 209.4465(7) permits good time credits to be 8 applied to a prisoner’s minimum sentence, in certain circumstances, thus, making an 9 inmate eligible for parole sooner than he or she would have been without the credits. See 10 NRS § 209.4465(7); Williams v. State Dep’t of Corr.,

, 1262 (Nev. 2017). 11 Because Plaintiff’s lawsuit revolves around his parole eligibility date and not his 12 underlying conviction or overall sentence, he may proceed with this § 1983 action. See 13 Wilkinson v. Dotson,

(2005) (holding that if a civil claim merely would 14 speed up the plaintiff’s consideration for parole and would not necessarily imply the 15 invalidity of the duration of confinement, then that claim may proceed in a § 1983 action). 16 A. Due Process 17 In order to state a Fourteenth Amendment due process claim, a plaintiff must 18 adequately allege that he was denied a specified liberty interest and that he was deprived 19 of that liberty interest without the constitutionally required procedures. Swarthout v. 20 Cooke,

, 219 (2011). In Nevada, state prisoners do not have a liberty interest 21 in parole or parole eligibility. See Moor v. Palmer,

(9th Cir. 2010). 22 Additionally, allegations that a defendant violated state law are not sufficient to state a 23 claim for violation of the Fourteenth Amendment’s due process clause. Swarthout, 562 24 U.S. at 222 (holding that “a ‘mere error of state law’ is not a denial of due process). 25 The Court finds that Plaintiff fails to state a colorable due process claim based on 26 the allegations that Defendants violated NRS § 209.4465(7)(b) and deprived him of an 27 earlier parole eligibility date. Plaintiff cannot establish a liberty interest in his parole 28 eligibility date. Moreover, the failure to properly apply NRS § 209.4465(7) constitutes an 1 error of state law and cannot be the basis of a due process claim. As such, the Court 2 dismisses the due process claim, with prejudice, as amendment would be futile. 3 B. Equal Protection 4 The Equal Protection Clause of the Fourteenth Amendment is essentially a 5 direction that all similarly situated persons be treated equally under the law. City of 6 Cleburne, Tex. v. Cleburne Living Ctr.,

(1985). In order to state an 7 equal protection claim, a plaintiff must allege facts demonstrating that defendants acted 8 with the intent and purpose to discriminate against him based upon membership in a 9 protected class, or that defendants purposefully treated him differently than similarly 10 situated individuals without any rational basis for the disparate treatment. Lee v. City of 11 Los Angeles,

(9th Cir. 2001); see also Vill. of Willowbrook v. Olech, 12

(2000). 13 The Court finds that Plaintiff fails to state a colorable equal protection claim. 14 Plaintiff has not made any allegations that even attempt to support an equal protection 15 claim. As such, the Court dismisses the claim without prejudice. 16 IV. CONCLUSION 17 For the foregoing reasons, it is ordered that Plaintiff's application to proceed in 18 forma pauperis (ECF No. 1) without having to prepay the full filing fee is granted. Plaintiff 19 shall not be required to pay an initial installment fee. Nevertheless, the full filing fee shall 20 still be due, pursuant to

, as amended by the Prison Litigation Reform 21 Act. The movant herein is permitted to maintain this action to conclusion without the 22 necessity of prepayment of fees or costs or the giving of security therefor. This order 23 granting in forma pauperis status shall not extend to the issuance and/or service of 24 subpoenas at government expense. 25 IT IS FURTHER ORDERED that, pursuant to

, as amended by 26 the Prison Litigation Reform Act, the Nevada Department of Corrections shall pay to the 27 Clerk of the United States District Court, District of Nevada, 20% of the preceding month's 28 deposits to the account of Alec Williams, Jr., #1004943 (in months that the account exceeds $10.00) until the full $350 filing fee has been paid for this action. The Clerk shall 2 send a copy of this order to the attention of Chief of Inmate Services for the Nevada 3| Department of Prisons, P.O. Box 7011, Carson City, NV 89702. 4 IT IS FURTHER ORDERED that, even if this action is dismissed, or is otherwise 5 | unsuccessful, the full filing fee shall still be due, pursuant to

, as amended 6 | by the Prison Litigation Reform Act. 7 IT IS FURTHER ORDERED that the Clerk of the Court file the complaint (ECF No. 8| 1-1). 9 IT IS FURTHER ORDERED that the Fourteenth Amendment due process claim is dismissed, with prejudice, as amendment would be futile. 11 IT IS FURTHER ORDERED that the Fourteenth Amendment equal protection 12 claim is dismissed without prejudice. 13 IT IS FURTHER ORDERED that the Clerk of the Court close this case and enter 14 | judgment accordingly. 15 IT IS FURTHER ORDERED that this Court certifies that any in forma pauperis appeal from this order would not be taken “in good faith” pursuant to

) 1915(a)(3). 18 19 DATED this 4th day of October, 2019. : 21 RICHARD F. BOULWARE, UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28

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