Neff v. Bryant

• Decision Date: 25 March 2011
• Docket Number: No. 3:09–cv–00672–RCJ–VPC.,3:09–cv–00672–RCJ–VPC.
• Citation: 772 F.Supp.2d 1318
• Parties: John R. NEFF, Plaintiff,v.Ronald BRYANT et al., Defendants.
• Court: U.S. District Court — District of Nevada

772 F.Supp.2d 1318

John R. NEFF, Plaintiff,

v.Ronald BRYANT et al., Defendants.

No. 3:09–cv–00672–RCJ–VPC.

United States District Court, D. Nevada.

March 25, 2011.

John Neff, Ely, NV, pro se.Robert Simon, The Office of the Attorney General, Carson City, NV, for Defendant.

ORDER

ROBERT C. JONES, District Judge.

This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. The Court previously granted Defendants' motion to dismiss Plaintiff's Fourteenth Amendment due process claim regarding the review of his Security Threat Group (“STG”) status for failure to exhaust administrative remedies. The Court dismissed the remaining two counts of the Complaint pursuant to 28 U.S.C. § 1915A, with leave to amend. Plaintiff has filed an Amended Complaint (“AC”). The Court now screens the claims, as amended.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff John R. Neff is a prisoner at the Ely State Prison (“ESP”), a facility of the Nevada Department of Corrections (“NDOC”) in Ely, Nevada. (Compl. 1, Sept. 22, 2009, ECF No. 1–2). On January 30, 2009, Plaintiff received a notice of charges (“NOC”) accusing him of gang activities and assault. ( Id. 5:10–12). Plaintiff alleges he was not permitted to introduce evidence in his defense at the March 21, 2009 disciplinary hearing, and that he was denied the opportunity to review the evidence against him because it was confidential. ( Id. 6:13–21). Plaintiff was found guilty and sanctioned with the loss of “stat time.” ( Id. 6:21–22). His appeals were denied. ( Id. 6:23–7:1). Plaintiff grieved his STG finding, and his grievance was denied at all levels. ( Id. 8:1–8). The Court dismissed the claims arising out of this incident, however, because Plaintiff did not use the administrative remedy required to challenge an STG designation.

In another incident, when legal materials that had been mailed to Plaintiff were withheld from him for being “unauthorized mail” he grieved the incident to exhaustion. ( Id. 8:23–9:10).

Plaintiff sued the ESP Warden, Eldon K. McDaniel; Correctional Sergeant Ronald Bryant; Correctional Lieutenant Thomas Prince; and Caseworker Robert Chambliss. The Court has dismissed the STG designation for failure to exhaust and now screens the remainder of the Complaint.

II. LEGAL STANDARDSA. Screening

Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1)-(2). Pro se pleadings, however, must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988). To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) that a right secured by the Constitution or laws of the United States was violated; and (2) that the alleged violation was committed by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988).

In addition to the screening requirements under § 1915A, pursuant to the Prison Litigation Reform Act of 1995 (“PLRA”), a federal court must dismiss a prisoner's claim, “if the allegation of poverty is untrue,” or if the action “is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). Dismissal of a complaint for failure to state a claim upon which relief can be granted is provided for in Federal Rule of Civil Procedure 12(b)(6), and the court applies the same standard under § 1915. When a court dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995).

Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(6) tests the complaint's sufficiency. See N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In considering whether the complaint is sufficient to state a claim, the court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). The court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citations omitted). “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the complaint may be considered.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n. 19 (9th Cir.1990) (citation omitted). Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). Moreover, under Federal Rule of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.1986).

Finally, all or part of a complaint filed by a prisoner may be dismissed sua sponte if the prisoner's claims lack an arguable basis in law or in fact. This includes claims based on legal conclusions that are untenable, e.g., claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist, as well as claims based on fanciful factual allegations, e.g., fantastic or delusional scenarios. See Neitzke v. Williams, 490 U.S. 319, 327–28, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir.1991).

B. Exhaustion

“The Prison Litigation Reform Act requires that a prisoner exhaust available administrative remedies before bringing a federal action concerning prison conditions.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir.2009) (citing 42 U.S.C. § 1997e(a)). A prison system's own requirements “define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). NDOC utilizes a three-stage grievance procedure: an informal grievance, a first level grievance, and a second level grievance. See NDOC Admin. Reg. 740 (Inmate Grievance Procedure), available at http:// www. doc. nv. gov/ ar/ pdf/ AR 740. pdf.

Although once within the discretion of the district court, the exhaustion of administrative remedies is now mandatory. Booth v. C.O. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Those remedies “need not meet federal standards, nor must they be ‘plain, speedy, and effective.’ ” Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (citing Booth, 532 U.S. at 739–40 n. 5, 121 S.Ct. 1819). Even when the prisoner seeks remedies not available in the administrative proceedings, notably money damages, exhaustion is still required prior to filing suit. Booth, 532 U.S. at 741, 121 S.Ct. 1819. The Supreme Court has strictly construed section 1997e(a). Id. at 741 n. 6, 121 S.Ct. 1819 (“We will not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise.”).

The failure to exhaust administrative remedies as required by § 1997e(a) is an affirmative defense, and a defendant bears the burden of raising and proving that the plaintiff has not exhausted. Jones v. Bock, 549 U.S. 199, 216, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007); Wyatt v. Terhune, 315 F.3d 1108, 1117 n. 9 (9th Cir.2003), cert. denied, 540 U.S. 810, 124 S.Ct. 50, 157 L.Ed.2d 23 (2003). However, if the affirmative defense of non-exhaustion appears on the face of the complaint, a defendant need not provide evidence showing non-exhaustion. See Jones, 549 U.S. at 215, 127 S.Ct. 910. Failure to exhaust is treated as a matter in abatement, not going to the merits of the claim, and is properly raised in an unenumerated Rule 12(b) motion. Wyatt, 315 F.3d at 1119. The court may look beyond the pleadings and decide disputed issues of fact without converting the motion into one for summary judgment. Id. “[I]f the district court concludes that the prisoner has not exhausted nonjudicial remedies, the proper remedy is dismissal of the claim without prejudice.” Id. at 1119–20.

For the purposes of screening, the Court will assume all claims have been exhausted. The Court will not more closely examine the issue unless some claims survive screening and Defendants file motions alleging non-exhaustion of the surviving claims.

III. ANALYSISA. Fourteenth Amendment

With respect to the disciplinary hearing, “[p]risoners ... may not be deprived of life, liberty...