2 DISTRICT OF NEVADA

3 LAMARR ROWELL, Case No. 3:18-cv-00396-MMD-CBC 4 Plaintiff ORDER 5 v.

6 JAMES E. DZURENDA,

7 Defendant

8 9 Plaintiff, a formerly incarcerated person of the Nevada Department of Corrections 10 (“NDOC”), has submitted a civil rights complaint pursuant to

11 (“Complaint”) and has filed an application to proceed in forma pauperis for prisoners, a 12 motion for declaratory judgment and a motion for judicial action. (ECF Nos. 1, 1-1, 1-2, 13 6.) The Court denies the application to proceed in forma pauperis for prisoners (ECF No. 14 1) as moot because Plaintiff is no longer incarcerated. The Court now screens Plaintiff’s 15 Complaint pursuant to 28 U.S.C. § 1915A and addresses the motions. 16 I. SCREENING STANDARD 17 Federal courts must conduct a preliminary screening in any case in which an 18 incarcerated person seeks redress from a governmental entity or officer or employee of 19 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 20 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 21 claim upon which relief may be granted, or seek monetary relief from a defendant who is 22 immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be 23 liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). 24 To state a claim under

, a plaintiff must allege two essential elements: 25 (1) the violation of a right secured by the Constitution or laws of the United States, and 26 (2) that the alleged violation was committed by a person acting under color of state law. 27 See West v. Atkins,

(1988). 28 /// 2 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 3 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 4 to state a claim on which relief may be granted, or seeks monetary relief against a 5 defendant who is immune from such relief.”

(e)(2). Dismissal of a 6 complaint for failure to state a claim upon which relief can be granted is provided for in 7 Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 8 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 9 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 10 the complaint with directions as to curing its deficiencies, unless it is clear from the face 11 of the complaint that the deficiencies could not be cured by amendment. See Cato v. 12 United States,

(9th Cir. 1995). 13 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 14 Chappel v. Lab. Corp. of Am.,

(9th Cir. 2000). Dismissal for failure to 15 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 16 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 18 allegations of material fact stated in the complaint, and the court construes them in the 19 light most favorable to the plaintiff. See Warshaw v. Xoma Corp.,

(9th 20 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 21 formal pleadings drafted by lawyers. See Hughes v. Rowe,

(1980). While 22 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 23 must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly, 550

, 555 (2007). A formulaic recitation of the elements of a cause of action is 25 insufficient.

26 Additionally, a reviewing court should “begin by identifying pleadings [allegations] 27 that, because they are no more than mere conclusions, are not entitled to the assumption 28 of truth.” Ashcroft v. Iqbal,

(2009). “While legal conclusions can provide 2 there are well-pleaded factual allegations, a court should assume their veracity and then 3 determine whether they plausibly give rise to an entitlement to relief.”

“Determining 4 whether a complaint states a plausible claim for relief . . . [is] a context-specific task that 5 requires the reviewing court to draw on its judicial experience and common sense.”

6 Finally, all or part of a complaint filed by an incarcerated person may therefore be 7 dismissed sua sponte if that person’s claims lack an arguable basis either in law or in fact. 8 This includes claims based on legal conclusions that are untenable (e.g., claims against 9 defendants who are immune from suit or claims of infringement of a legal interest which 10 clearly does not exist), as well as claims based on fanciful factual allegations (e.g., 11 fantastic or delusional scenarios). See Neitzke v. Williams,

, 327–28 (1989); 12 see also McKeever v. Block,

(9th Cir. 1991). 13 II. SCREENING OF COMPLAINT1 14 In the Complaint, Plaintiff sues Defendant NDOC Director James E. Dzurenda for 15 events that took place while Plaintiff was incarcerated at the Stewart Conservation Camp. 16 (ECF No. 1-1 at 1.) Plaintiff alleges one count and seeks monetary damages and 17 declaratory relief.2 (Id. at 4, 9.) 18 The Complaint alleges the following. In March 2008, a state court sentenced 19 Plaintiff to life in prison with parole eligibility after serving 10 years. (Id. at 4.) On 20 December 14, 2017, the parole board granted Plaintiff parole, effective when eligible. (Id.) 21 The NDOC offender management division timekeeper determined that Plaintiff’s parole 22 eligibility date (“PED”) was March 11, 2018. (Id.) The PED ended Plaintiff’s 10-year 23 minimum sentence and parole was effective on that date. (Id.) Both the grant of parole 24 and its effective date were a protected liberty interest. (Id.) Even though Dzurenda lacked 25 the statutory authority to hold Plaintiff in custody past March 11, 2018, Plaintiff remained 26 1The Court denies the motion for judicial action (ECF No. 6) as moot in light of this 27 screening order. 28 2The Court interprets Plaintiff’s motion for declaratory judgment (ECF No. 1-2) as a request for declaratory relief. The Court denies the motion without prejudice and 2 Amendment due process violation. (Id.) 3 In Heck v. Humphrey,

(1994), the Supreme Court held that “in order 4 to recover damages for [an] allegedly unconstitutional conviction or imprisonment, or for 5 other harm caused by actions whose unlawfulness would render a conviction or sentence 6 invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed 7 on direct appeal, expunged by executive order, declared invalid by a state tribunal 8 authorized to make such determination, or called into question by a federal court’s 9 issuance of a writ of habeas corpus,

.”

. “A claim for 10 damages bearing that relationship to a conviction or sentence that has not been . . . 11 invalidated is not cognizable under § 1983.” Id. at 487. “Thus, when a state prisoner seeks 12 damages in a § 1983 suit, the district court must consider whether a judgment in favor of 13 the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, 14 the complaint must be dismissed unless the plaintiff can demonstrate that the conviction 15 or sentence has already been invalidated.” Id. 16 Plaintiff’s claims implicate Heck because he is challenging the duration of his 17 sentence. However, the Court finds that, despite the Heck bar, Plaintiff may bring this § 18 1983 claim because habeas relief is unavailable to Plaintiff because he is no longer 19 incarcerated. See Nonnette v. Small,

(9th Cir. 2002). The Court will 20 now address Plaintiff’s due process claim. 21 In order to state a Fourteenth Amendment due process claim, a plaintiff must 22 adequately allege that he was denied a specified liberty interest and that he was deprived 23 of that liberty interest without the constitutionally required procedures. Swarthout v. 24 Cooke,

, 219 (2011). In Nevada, state prisoners do not have a liberty interest 25 in parole or parole eligibility. See Moor v. Palmer,

(9th Cir. 2010); 26 Fernandez v. Nevada, No. 3:06-CV-00628-LRH-RAM,

, at *10 (D. Nev.

, 2009); see NRS § 213.10705 (stating that “[t]he Legislature finds and declares 28 that the release or continuation of a person on parole or probation is an act of grace of 2 establishment of standards relating thereto create any such right or interest in liberty or 3 property or establish a basis for any cause of action against the State, its political 4 subdivisions, agencies, boards, commissions, departments, officers or employees”). The 5 Supreme Court has held that, if state law does not create a liberty interest in parole, there 6 can be no liberty interest after a grant of parole. See Jago v. Van Curen,

, 20- 7 21 (1981) (holding that, even after authorities granted the inmate parole, the inmate did 8 not suffer a due process violation when authorities failed to hold a hearing before 9 rescinding and denying the grant of parole because the state statutes had not created a 10 protected liberty interest for parole). 11 The Court dismisses the due process claim in its entirety, with prejudice, as 12 amendment would be futile. Plaintiff fails to establish a liberty interest for his due process 13 claim because there is no liberty interest in parole, parole eligibility, or a grant of parole 14 in Nevada. See Jago,

. As such, Plaintiff cannot state a colorable due 15 process claim. 16 III. CONCLUSION 17 For the foregoing reasons, it is ordered that Plaintiff’s application to proceed in 18 forma pauperis for prisoners (ECF No. 1) is denied as moot. 19 It is further ordered that the Clerk of the Court file the Complaint (ECF No. 1-1) and 20 send Plaintiff a courtesy copy. 21 It is further ordered that the Complaint (ECF No. 1-1) is dismissed in its entirety 22 with prejudice as amendment would be futile for failure to state a claim. 23 It is further ordered that the motion for declaratory judgment (ECF No. 1-2) is 24 denied without prejudice. 25 It is further ordered that the motion for judicial action (ECF No. 6) is denied as 26 moot. 27 /// 28 /// 1 It is further ordered that this Court certifies that any in forma pauperis appeal from 2|| this order would not be taken “in good faith” pursuant to

(a)(3). 4 DATED THIS 21* day of October 2019. 5 ( ( LL. ) 6 MIRANDA M. DU ; CHIEF UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28