2 UNITED STATES DISTRICT COURT 3

DISTRICT OF NEVADA 4

* * * 5

Case No. 3:18-cv-00559-MMD-WGC 6 IVAN LEE MATTHEWS, II,

SCREENING ORDER 7 Plaintiff, v. 8 FILSON, et al., 9 Defendants. 10 11 Plaintiff, who is incarcerated in the custody of the Nevada Department of 12 Corrections (“NDOC”), has submitted a civil rights complaint (“Complaint”) pursuant to 42

and has filed an application to proceed in forma pauperis. (ECF Nos. 1-1, 14 4.) The Court now addresses the application to proceed in forma pauperis and screens 15 Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915A. 16 I. IN FORMA PAUPERIS APPLICATION 17 Plaintiff’s application to proceed in forma pauperis is granted. (ECF No. 4.) Based 18 on the information regarding Plaintiff’s financial status, the Court finds that Plaintiff is not 19 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 21 $350.00 filing fee when he has funds available. 22 II. SCREENING STANDARD 23 Federal courts must conduct a preliminary screening in any case in which an 24 incarcerated person seeks redress from a governmental entity or officer or employee of a 25 governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any 26 cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim 27 upon which relief may be granted, or seek monetary relief from a defendant who is immune 28 from such relief. See id. § 1915A(b)(1), (2). Pro se pleadings, however, must be liberally 2 a claim under

, a plaintiff must allege two essential elements: (1) the 3 violation of a right secured by the Constitution or laws of the United States, and (2) that 4 the alleged violation was committed by a person acting under color of state law. See West 5 v. Atkins,

(1988). 6 In addition to the screening requirements under § 1915A, pursuant to the Prison 7 Litigation Reform Act (“PLRA”), a federal court must dismiss an incarcerated person’s 8 claim if “the allegation of poverty is untrue” or if the action “is frivolous or malicious, fails 9 to state a claim on which relief may be granted, or seeks monetary relief against a 10 defendant who is immune from such relief.”

(e)(2). Dismissal of a 11 complaint for failure to state a claim upon which relief can be granted is provided for in 12 Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under 13 § 1915 when reviewing the adequacy of a complaint or an amended complaint. When a 14 court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend 15 the complaint with directions as to curing its deficiencies, unless it is clear from the face of 16 the complaint that the deficiencies could not be cured by amendment. See Cato v. United 17 States,

(9th Cir. 1995). 18 Review under Rule 12(b)(6) is essentially a ruling on a question of law. See 19 Chappel v. Lab. Corp. of Am.,

(9th Cir. 2000). Dismissal for failure to 20 state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in 21 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 23 allegations of material fact stated in the complaint, and the court construes them in the 24 light most favorable to the plaintiff. See Warshaw v. Xoma Corp.,

(9th 25 Cir. 1996). Allegations of a pro se complainant are held to less stringent standards than 26 formal pleadings drafted by lawyers. See Hughes v. Rowe,

(1980). While 27 the standard under Rule 12(b)(6) does not require detailed factual allegations, a plaintiff 28 must provide more than mere labels and conclusions. Bell Atl. Corp. v. Twombly,

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,

(2009). “While legal conclusions can provide 6 the framework of a complaint, they must be supported with factual allegations.”

“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.”

“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.”

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,

, 327–28 (1989); 17 see also McKeever v. Block,

(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 Ely State Prison (“ESP”). (ECF No. 1-1 at 1.) Plaintiff sues 21 Defendants Warden Filson, Warden Gittere, Warden William Reubart, and the NDOC. (Id. 22 at 1–2.) Plaintiff alleges two counts and seeks monetary damages. (Id. at 5, 9.) 23 Plaintiff alleges the following. Plaintiff has written at least five to six grievances and 24 has not received a response from the prison administration. (Id. at 3.) His grievances have 25 ranged from monetary disputes, medical issues, lack of treatment, meals, housing, and 26 more. (Id.) These things are important to him and have caused him financial setbacks, 27 medical issues, and other hardships. (Id.) In response to the grievances, prison officials 28 tell Plaintiff that he can only submit one grievance a week. (Id.) As a result, prison officials 2 grievances are returned without any action whatsoever. (Id. at 12.) This has been ongoing 3 since April 2018. (Id.) Plaintiff says that there is nothing in the NDOC or prison handbook 4 about this under grievance procedures. (Id.) Plaintiff alleges violations of due process 5 (Count I) and negligence (Count II). (Id. at 4–5.) 6 Prisoners have no stand-alone due process rights related to the administrative 7 grievance process. See Mann v. Adams,

(9th Cir. 1988) (holding that 8 a state’s unpublished policy statements establishing a grievance procedure do not create 9 a constitutionally protected liberty interest); Ramirez v. Galaza,

(9th 10 Cir. 2003) (holding that there is no liberty interest in the processing of appeals because 11 there is no liberty interest entitling inmates to a specific grievance process). 12 The Court finds that Plaintiff fails to state a colorable due process claim about how 13 prison officials process or do not process his grievances because there is no liberty 14 interest in the grievance procedure. As such, the Court dismisses this claim with prejudice 15 as amendment would be futile. 16 The Court declines to exercise supplemental jurisdiction over Plaintiff’s state law 17 negligence claim because the Court has dismissed Plaintiff’s federal claim. See 28 U.S.C. 18 § 1367(c)(3) (stating that the “district courts may decline to exercise supplemental 19 jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it 20 has original jurisdiction”). 21 IV. CONCLUSION 22 For the foregoing reasons, it is ordered that Plaintiff’s application to proceed in 23 forma pauperis (ECF No. 4) without having to prepay the full filing fee is granted. Plaintiff 24 will not be required to pay an initial installment fee. Nevertheless, the full filing fee shall 25 still be due, pursuant to

, as amended by the PLRA. The movant herein 26 is permitted to maintain this action to conclusion without the necessity of prepayment of 27 fees or costs or the giving of security therefor. This order granting in forma pauperis status 28 will not extend to the issuance and/or service of subpoenas at government expense. 1 It is further ordered that, pursuant to

, as amended by the PLRA, 2 || the Nevada Department of Corrections must 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 /van 4 || Lee Matthews, Il, #1127748 (in months that the account exceeds $10.00) until the full 5 || $350 filing fee has been paid for this action. The Clerk will send a copy of this order to the 6 || attention of Chief of Inmate Services for the Nevada Department of Prisons, P.O. Box 7 || 7011, Carson City, NV 89702. 8 It is further ordered that, even if this action is dismissed, or is otherwise 9 || unsuccessful, the full filing fee will still be due, pursuant to

, as amended 10 || by the PLRA. 11 It is further ordered that the Clerk of the Court file the Complaint (ECF No. 1-1) and 12 || send Plaintiff a courtesy copy. 13 It is further ordered that Count |, alleging Fourteenth Amendment due process 14 || violations, is dismissed with prejudice as amendment would be futile. 15 It is further ordered that Count II, alleging state law negligence, is dismissed without 16 || prejudice because the Court declines to exercise supplemental jurisdiction over the claim 17 || under

(c)(3). 18 It is further ordered that the Clerk of the Court close the case and enter judgment 19 || accordingly. 20 It is further ordered that this Court certifies that any in forma pauperis appeal from 21 || this order would not be taken “in good faith” pursuant to

(a)(3). 22 DATED THIS 6"" day of November 2019.

24 ifRANDA MBO 95 CHIEF UNITED STATES DISTRICT JUDGE

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