Reberger v. Offender Management Division (OMD) et al, No. 3:2012cv00293 - Document 9 (D. Nev. 2012)
Court Description: ORDER granting 4 Motion/Application for Leave to Proceed in forma pauperis; denying 5 and 8 Motions to Raise Copy Credit Limit. Monthly payments due until full filing fee paid. Clerk shall send copy of this order to finance department and to Chief of Inmate Services (sent 11/30/12). This action DISMISSED as frivolous and for failure to state claim, with this dismissal counting as plaintiff's third "strike". Clerk shall enter final judgment accordingly, in favor of defendants and against plaintiff. Case terminated. Signed by Judge Larry R. Hicks on 11/29/12. (Copies have been distributed pursuant to the NEF - JC)
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Reberger v. Offender Management Division (OMD) et al Doc. 9 1 2 3 4 5 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 6 7 8 LANCE REBERGER, Plaintiff, 9 10 3:12-cv-00293-LRH-VPC vs. 11 12 13 ORDER OFFENDER MANAGEMENT DIVISION, et al. Defendants. 14 15 This prisoner civil rights action by a Nevada state inmate comes before the Court on plaintiff’s 16 second (#4) application for leave to proceed in forma pauperis, on his two motions (## 4 & 8) to raise 17 his prison copy credit limit, and for initial review under 28 U.S.C. § 1915A. 18 On the pauper application, the Court finds that plaintiff is unable to pay a substantial initial 19 partial filing fee. The application therefore will be granted, subject to the remaining provisions herein. 20 The Court thus turns to initial review of the complaint. 21 Screening 22 When a “prisoner seeks redress from a governmental entity or officer or employee of a 23 governmental entity,” the court must “identify cognizable claims or dismiss the complaint, or any 24 portion of the complaint, if the complaint: (1) is frivolous, malicious, or fails to state a claim upon 25 which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such 26 relief.” 28 U.S.C. § 1915A(b). 27 In considering whether the plaintiff has stated a claim upon which relief can be granted, all 28 material factual allegations in the complaint are accepted as true for purposes of initial review and are Dockets.Justia.com 1 to be construed in the light most favorable to the plaintiff. See,e.g., Russell v. Landrieu, 621 F.2d 1037, 2 1039 (9th Cir. 1980). However, mere legal conclusions unsupported by any actual allegations of fact 3 are not assumed to be true in reviewing the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 677-81 & 686- 4 87 (2009). That is, bare and conclusory assertions that constitute merely formulaic recitations of the 5 elements of a cause of action and that are devoid of further factual enhancement are not accepted as true 6 and do not state a claim for relief. Id. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Further, the factual allegations must state a plausible claim for relief, meaning that the wellpleaded facts must permit the court to infer more than the mere possibility of misconduct: [A] complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007).] A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id., at 557, 127 S.Ct. 1955 (brackets omitted). . . . . [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not “show[n]” - “that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). Iqbal, 556 U.S. at 678. Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). 21 Plaintiff Lance Reberger alleges that he was transferred to Ely State Prison (“Ely”) in retaliation 22 for his having filed a motion for a preliminary injunction, under circumstances discussed in more detail 23 below. In three counts, plaintiff alleges that the retaliatory transfer denied him due process of law under 24 the Fifth Amendment (Count I), constituted cruel and unusual punishment in violation of the Eighth 25 Amendment (Count II), and due process of law under the Fourteenth Amendment (Count III). He seeks 26 injunctive and declaratory relief as well as compensatory damages for mental anguish, emotional 27 distress, and pain and suffering along with punitive damages. He seeks recovery from the “Offender 28 Management Division” (OMD) and its administrator in their individual and official capacities. -2- 1 Plaintiff may not obtain relief under any of the constitutional provisions that he expressly 2 invokes in the three counts. Whatever constitutional protection is provided against retaliation for 3 engaging in litigation activity, it does not arise under either the Due Process Clause of the Fifth or 4 Fourteenth Amendments or by virtue of the Eighth Amendment’s prohibition against cruel and unusual 5 punishment. A state inmate has no constitutionally protected due process right to to be housed in one 6 facility rather than another. See,e.g., Hernandez v. Johnston, 833 F.2d 1316, 1318 (9th Cir.1987). Nor 7 does transfer to a different facility constitute cruel and unusual punishment. 8 recitals to the contrary are frivolous. Plaintiff’s formulaic 9 The First Amendment potentially provides protection against substantial action taken in 10 retaliation for an inmate exercising his right to access the courts. However, plaintiff’s allegation that 11 he was transferred to Ely in retaliation for litigation activity is frivolous on its face. 12 Reberger alleges the following. His caseworker told him on February 16, 2012, that OMD had 13 put him in for transfer to Ely on February 1, 2012. On or about February 23, 2012, Reberger 14 constructively filed an emergency motion for a preliminary injunction in this Court in No. 3:12-cv- 15 00112-RCJ-WGC seeking to block the transfer to Ely. On March 7, 2012, while his motion still was 16 being litigated, Reberger asked his co-worker whether the transfer to Ely had been approved yet, and 17 the caseworker responded that it had not. Thereafter, allegedly on March 15, 2012, the Magistrate 18 Judge in the prior case issued a report and recommendation in which denial of the motion for 19 preliminary injunction was recommended.1 Purportedly the “next day” (in truth, as reflected by the note 20 below, instead nine days after the hearing where the Magistrate Judge stated to the parties that he found 21 against plaintiff), OMD approved Reberger’s transfer to Ely. 22 Plaintiff urges that it is “obvious” that the defendants transferred him to Ely in retaliation for 23 his having filed the motion for preliminary injunction restraining the transfer that was not granted. 24 Plaintiff’s tortured logic not only is not obvious, it is wholly frivolous. What instead is obvious from 25 26 27 28 1 The record from the prior proceeding in fact indicates : (a) that the M agis trate Judge told the parties at the M arch 7, 2012, motion hearing that he found that no s howing had been made to warrant a preliminary injuction; and (b) that the written report and recommendation was entered on M arch 12, 2012. On M arch 7, 2012, the M agis trate Judge s pecifically denied plaintiff’s reques t that his trans fer be delayed until s uch time as his objection to the report and recommendation (which never was filed) was res olved. See No. 3:12-cv-00112-RCJ-W GC, #10, at 2 (s ealed filing). -3- 1 the nonconclusory allegations of actual fact presented is that defendants did not proceed with the 2 transfer while plaintiff’s motion to block the transfer was under consideration and that they proceeded 3 with the transfer only after plaintiff’s request for interim relief was rejected.2 Under plaintiff’s tortured 4 “heads I win, tails you lose” logic, defendants could not transfer plaintiff to Ely regardless of the 5 outcome on his motion. If he won the motion, the Court’s order would bar defendants from transferring 6 him; and, under plaintiff’s flawed logic, even if he lost the motion, defendants could not transfer him 7 because to do so would be in retaliation for his pursuing the motion to block the transfer that plaintiff 8 effectively lost. 9 defendants thereafter were fully free to transfer him. Plaintiff’s attempt to obtain the relief that instead 10 was denied by conclusorily labeling the following transfer as a transfer in retaliation for his failed 11 request to block the transfer is wholly frivolous. 12 The Court denied interim relief on plaintiff’s motion to block the transfer, and In this same vein, plaintiff’s effort to establish retaliatory intent by arguing that he otherwise 13 would not have been transferred similarly is frivolous. 14 allegations in the complaint, defendants put in for the transfer before plaintiff filed a motion to block 15 that transfer and then, once the Court denied interim relief, the transfer was approved and effectuated. 16 Regardless of what circumstances plaintiff may believe should or should not lead to a transfer, the 17 decision of whether to transfer a particular prisoner from one institution to another is one of the matters 18 committed to the discretion of correctional officials in assessing security and other concerns at the 19 various institutions under their charge.3 20 circumstances presented does not support an inference of retaliation for litigation activity (particularly 21 alleged retaliation for pursuing an unsuccessful request to block the transfer). 22 Under the nonconclusory actual factual An inmate’s belief that he should not be transferred in the The complaint therefore is frivolous and fails to state a claim upon which relief may be granted.4 23 24 25 26 27 2 Plaintiff did not file objections to the report and recommendation in the dis trict court, and the action thereafter was dis mis s ed after plaintiff failed to file a complaint in res pons e to an order, with all pending motions denied as moot. 3 The Court extens ively examined correctional officials ’ reas ons for the – then ongoing – effort to trans fer plaintiff in the prior action. See No. 3:12-cv-00112-RCJ-W GC, #11 (s ealed filing). 4 The complaint further is s ubject to other deficiencies . Firs t, the Offender M anagement Divis ion is not a 28 (continued...) -4- 1 2 Given that the claims presented are at their core frivolous, the Court finds that amendment would be futile. 3 Three Strikes 4 Under the "three strikes" provisions of 28 U.S.C. § 1915(g), a prisoner may not proceed in forma 5 pauperis if he has brought, on three or more occasions while incarcerated, an action “that was dismissed 6 on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 7 unless the prisoner is under imminent danger of serious physical injury.” 8 The present dismissal constitutes such a “strike” upon the conclusion of proceedings herein. 9 This strike is plaintiff’s third. Two prior actions have been dismissed for failure to state a claim, being 10 in particular No. 2:10-cv-02022-GMN-GWF (mandate issued October 30, 2012) and No. 3:11-cv- 11 00073-LRH- RAM (order as mandate issued June 3, 2011). Plaintiff thus has “struck out” under § 12 1915(g) upon the conclusion of proceedings herein. 13 Copy Credit Limit 14 In his two motions to raise his prison legal copy credit limit, plaintiff seeks an “extra” $100.00 15 for copies in three actions in this Court. The two other actions referenced in the motion have been 16 dismissed, and this action is being dismissed by this order. 17 Plaintiff thus does not need to make copies for service in any of the actions. Even if the actions 18 had not been dismissed, service may not proceed until after the Court directs service in a screening 19 order. 20 defendants without the requirement for service of hard copies of a summons and complaint. An inmate 21 plaintiff seeking to sue correctional defendants thus would have no occasion to make copies for service Even in that instance, the Attorney General informally accepts service for many corrections 22 23 24 25 26 27 28 4 (...continued) juridical entity that can be s ued. Second, even if it were, as a divis ion of the s tate corrections department, it may not be s ued in federal court due to the s tate s overeign immunity recognized by the Eleventh A mendment, regardles s of the relief s ought. Third, the remaining defendant officer may not be s ued for monetary damages in his official capacity. Fourth, under 42 U.S.C. § 1997e(e), plaintiff may not recover on the allegations pres ented for compens atory damages for mental anguis h, emotional dis tres s , or pain and s uffering. It further is s ubject to s ubs tantial ques tion whether plaintiff in effect can collaterally attack the denial of relief in the prior – fully concluded – cas e by labeling action fully cons is tent with the Court’s orders in that cas e as “retaliation” for plaintiff filing a motion to block that very s ame action that plaintiff failed to block. The Court only notes thes e additional deficiencies in pas s ing given that the entire complaint is frivolous and fails to s tate a claim upon which relief may be granted. -5- 1 unless and until the Court ordered service for a response and then only as to defendants for whom the 2 Attorney General thereafter did not accept service. 3 Plaintiff thus also has no need to make copies “to file for discovery from all the defendants on 4 all cases.” Even if the cases had not been dismissed, discovery would not proceed until the Court issued 5 a scheduling order providing for discovery deadlines. Plaintiff does not need to have his credit limit 6 raised at the outset of an action to direct discovery to all defendants in all of his cases. 7 Plaintiff further refers to additional actions that he plans to file. If plaintiff indeed files such 8 actions – and overcomes the three-strikes provision referenced in the preceding section – he will have 9 to make his request to raise the copy credit limit with regard to those actions in those actions, not this 10 one. 11 Finally, the Court notes that it typically does not grant a request to raise an inmate’s copy credit 12 limit based upon a bald assertion by the inmate that he has exceeded the limit. The inmate must attach 13 a copy of a recent administrative denial of copies reflecting that he is over the limit. The Court further 14 typically does not grant such requests in multiple $100.00 increments. If a request is approved in the 15 first instance, the Court typically approves only a much smaller amount, such as $10.00, actually 16 necessary to conduct then-ongoing proceedings in the particular case before it. No such need is evident 17 here. 18 The Constitution does not require that state authorities provide plaintiff either with free copies 19 or with the substantial equivalent of open-ended or unlimited credit for copies. See,e.g., Gluth v. 20 Arizona Department of Corrections, 951 F.2d 1504, 1510 (9th Cir. 1991). 21 The two motions therefore will be denied. 22 IT THEREFORE IS ORDERED that the second application (#4) to proceed in forma pauperis 23 is GRANTED, subject to the remaining provisions herein. 24 initial partial filing fee. However, even if this action is dismissed, the full $350.00 filing fee still must 25 be paid pursuant to 28 U.S.C. § 1915(b)(2). 26 Plaintiff shall not be required to pay an IT FURTHER IS ORDERED that plaintiff is permitted to maintain this action to a conclusion 27 without the necessity of prepayment of any additional fees or costs or the giving of security therefor. 28 This order granting paupers status shall not extend to the issuance of subpoenas at government expense. -6- 1 IT FURTHER IS ORDERED that, pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department 2 of Corrections shall pay to the Clerk of the United States District Court, District of Nevada, 20% of the 3 preceding month's deposits to plaintiff's account (in the months that the account exceeds $10.00) until 4 the full $350 filing fee has been paid for this action. The Clerk shall SEND a copy of this order to the 5 Finance Division of the Clerk's Office. The Clerk shall also SEND a copy of this order to the attention 6 of the Chief of Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson 7 City, NV 89702. 8 9 IT FURTHER IS ORDERED that plaintiff’s motions (## 5 & 8) to raise his copy credit limit are DENIED. 10 IT FURTHER IS ORDERED that this action shall be DISMISSED as frivolous and for failure 11 to state a claim, with this dismissal counting as plaintiff’s third “strike” under 28 U.S.C. § 1915(g) upon 12 the conclusion of proceedings herein. See text, supra, at 5. 13 14 15 The Clerk shall enter final judgment accordingly, in favor of defendants and against plaintiff, dismissing this action. DATED this 29th day of November, 2012. 16 17 ___________________________________ LARRY R. HICKS UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 -7-
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