1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 IVAN LEE MATTHEWS, II, Case No. 3:18-cv-00563-MMD-WGC 5 Plaintiff, ORDER 6 v.

7 ELY STATE PRISON, et al., 8 Defendants. 9 10 11 I. IN FORMA PAUPERIS APPLICATION 12 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 4.) Based 13 on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not 14 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 16 $350.00 filing fee when he has funds available. 17 II. SCREENING STANDARD 18 Federal courts must conduct a preliminary screening in any case in which an 19 incarcerated person seeks redress from a governmental entity or officer or employee of 20 a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify 21 any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a 22 claim upon which relief may be granted, or seek monetary relief from a defendant who is 23 immune from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be 24 liberally construed. Balistreri v. Pacifica Police Dep’t,

(9th Cir. 1990). 25 To state a claim under

, a plaintiff must allege two essential elements: 26 (1) the violation of a right secured by the Constitution or laws of the United States, and 27 (2) that the alleged violation was committed by a person acting under color of state law. 28 See West v. Atkins,

(1988). 1 In addition to the screening requirements under § 1915A, pursuant to the Prison 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 1 the framework of a complaint, they must be supported with factual allegations.”

“When 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 III. SCREENING OF COMPLAINT 14 In the Complaint, Plaintiff sues multiple defendants for events that took place while 15 Plaintiff was incarcerated at Ely State Prison (“ESP”). (ECF No. 1-1 at 1.) Plaintiff sues 16 Defendants Warden William Reubart, Warden Filson, NDOC, and ESP. (Id. at 2.) Plaintiff 17 alleges three counts and seeks monetary damages. (Id. at 6, 8.) 18 The Complaint alleges the following. From April 10, 2018 through April 14, 2018, 19 prison officials did not offer Plaintiff a shower within a 96-hour time span due to an 20 institutional lock down caused by something in Unit 7A. (Id. at 3.) Plaintiff was in Unit 7B, 21 cell #32 at the time. (Id.) Plaintiff pressed the intercom repeatedly and verbally requested 22 a shower on April 14, 2018, at 7 a.m. (Id.) 23 According to the NDOC operational procedures, prison officials are supposed to 24 offer showers three times a week at least every 72 hours. (Id.) For five months, Plaintiff 25 has attempted to resolve this matter though the grievance procedure. (Id. at 11.) 26 However, prison officials have denied his grievances and have not interviewed his 27 witnesses. (Id.) 28 /// 1 Plaintiff alleges claims for cruel and unusual punishment (Count I), negligence 2 (Count II), and due process (Count III). (Id. at 4-6.) 3 A. Eighth Amendment Conditions of Confinement (Count I) 4 The “treatment a prisoner receives in prison and the conditions under which he is 5 confined are subject to scrutiny under the Eighth Amendment.” Helling v. McKinney, 509

, 31 (1993). Conditions of confinement may, consistent with the Constitution, be 7 restrictive and harsh. Rhodes v. Chapman,

(1981). However, “[p]rison 8 officials have a duty to ensure that prisoners are provided adequate shelter, food, 9 clothing, sanitation, medical care, and personal safety.” Johnson v. Lewis,

, 10 731 (9th Cir. 2000). When determining whether the conditions of confinement meet the 11 objective prong of the Eighth Amendment analysis, the court must analyze each condition 12 separately to determine whether that specific condition violates the Eighth Amendment. 13 See Wright v. Rushen,

(9th Cir. 1981). As to the subjective prong of 14 the Eighth Amendment analysis, prisoners must establish prison officials’ “deliberate 15 indifference” to the unconstitutional conditions of confinement to establish an Eighth 16 Amendment violation. Farmer v. Brennan,

(1994). When considering 17 the conditions of confinement, the court should consider the amount of time to which the 18 prisoner was subjected to the condition. Hearns v. Terhune,

(9th 19 Cir. 2005). 20 The Court finds that Plaintiff fails to allege a colorable Eighth Amendment 21 conditions of confinement claim. Based on the allegations, Plaintiff was unable to have a 22 shower within a 96-hour period because the prison was on a lockdown. This is insufficient 23 to state a colorable constitutional violation. The Court dismisses this claim with prejudice 24 as amendment would be futile. 25 B. Fourteenth Amendment Due Process (Count III) 26 Prisoners have no stand-alone due process rights related to the administrative 27 grievance process. See Mann v. Adams,

(9th Cir. 1988) (holding that 28 a state’s unpublished policy statements establishing a grievance procedure do not create 1 a constitutionally protected liberty interest); Ramirez v. Galaza,

(9th 2 Cir. 2003) (holding that there is no liberty interest in the processing of appeals because 3 there is no liberty interest entitling inmates to a specific grievance process). 4 The Court dismisses the due process claim with prejudice as amendment would 5 be futile. Plaintiff does not have a liberty interest in how prison officials choose to 6 investigate or respond to his grievances. 7 C. State Law Negligence (Count II) 8 The Court declines to exercise supplemental jurisdiction over Plaintiff’s state law 9 negligence claim because the Court has dismissed all of Plaintiff’s federal claims. See 28

(c)(3) (stating that the “district courts may decline to exercise supplemental 11 jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it 12 has original jurisdiction”). 13 IV. CONCLUSION 14 For the foregoing reasons, it is ordered that Plaintiff’s application to proceed in 15 forma pauperis (ECF No. 4) without having to prepay the full filing fee is granted. Plaintiff 16 shall not be required to pay an initial installment fee. Nevertheless, the full filing fee shall 17 still be due, pursuant to

, as amended by the Prison Litigation Reform 18 Act. The movant herein is permitted to maintain this action to conclusion without the 19 necessity of prepayment of fees or costs or the giving of security therefor. This order 20 granting in forma pauperis status shall not extend to the issuance and/or service of 21 subpoenas at government expense. 22 It is further ordered that, pursuant to

, as amended by the Prison 23 Litigation Reform Act, the Nevada Department of Corrections shall pay to the Clerk of the 24 United States District Court, District of Nevada, 20% of the preceding month's deposits to 25 the account of Ivan Lee Matthews, II, #1127748 (in months that the account exceeds 26 $10.00) until the full $350 filing fee has been paid for this action. The Clerk shall send a 27 copy of this order to the attention of Chief of Inmate Services for the Nevada Department 28 of Prisons, P.O. Box 7011, Carson City, NV 89702. 1 It is further ordered that, even if this action is dismissed, or is otherwise 2 || unsuccessful, the full filing fee shall still be due, pursuant to

, as amended 3 || by the Prison Litigation Reform Act. 4 It is further ordered that the Clerk of the Court file the complaint (ECF No. 1-1) and 5 || send Plaintiff a courtesy copy. 6 It is further ordered that Count |, alleging Eighth Amendment conditions of 7 || confinement violations, is dismissed with prejudice as amendment would be futile. 8 It is further ordered that Count III, alleging Fourteenth Amendment due process 9 || violations, is dismissed with prejudice as amendment would be futile. 10 It is further ordered that Count II, alleging state law negligence, is dismissed 11 || without prejudice because the Court declines to exercise supplemental jurisdiction over 12 || the claim under

(c)(3). 13 It is further ordered that the Clerk of the Court close this case and enter judgment 14 || accordingly. 15 It is further ordered that this Court certifies that any in forma pauperis appeal from 16 || this order would not be taken “in good faith” pursuant to

(a)(3). " DATED THIS 5"" day of November 2019. 18 —

20 MIRANDA M-DU CHIEF UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28