Bradford v. Sisolak

1

Julius Bradford, Plaintiff, v. Steve Sisolak, et al., Defendants.

No. 2:20-cv-00871-ART-BNW

United States District Court, D. Nevada

March 7, 2023

SCREENING ORDER AND REPORT AND RECOMMENDATION RE ECF NO. 56

BRENDA WEKSLER, UNITED STATES MAGISTRATE JUDGE

Before the Court is pro se Plaintiff Julius Bradford's Second Amended Complaint. ECF No. 56. Although Plaintiff's filing is titled “Motion to File an Amended Complaint,” the Court construes it as an amended complaint subject to screening under 28 U.S.C. § 1915A(a). This is because Plaintiff is an incarcerated individual seeking redress from a governmental entity. 28 U.S.C. § 1915A(a).

As a procedural matter, the Court previously screened Plaintiff's First Amended Complaint and dismissed it without prejudice and with leave to amend.^[1] ECF No. 38. Following several requests to extend the due date for filing the amended complaint, the Court ordered Plaintiff to file his Second Amended Complaint by June 24, 2022. ECF No. 55. But Plaintiff filed it on July 5, 2022. ECF No. 56. Plaintiff attributes the delay to external factors: He submitted the amended complaint for electronic filing on June 24, 2022, but it was returned to him from the prison law library on June 28, 2022 in its original condition and with no indication as to whether it was filed. ECF No. 57. In light of this explanation, the Court finds good cause and excusable neglect under Fed.R.Civ.P. 6(b)(1)(B) to extend the deadline for filing the Second Amended Complaint.

For the reasons discussed below, the Court orders that Plaintiff's claim regarding his (in)ability to challenge NRS 193.190, 193.200, and 195.020 be dismissed without prejudice. But it recommends that Plaintiff's remaining claims be dismissed with prejudice because amendment would be futile.

I. Legal Standard

A court must screen “a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a).

In screening the complaint, a court must identify cognizable claims and dismiss claims that are frivolous, malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to state a claim under § 1915(e)(2) incorporates the standard for failure to state a claim under Fed.R.Civ.P 12(b)(6). Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012).

To survive § 1915 review, a complaint must “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citation omitted). In considering whether the complaint is sufficient to state a claim, all allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Wyler Summit P'ship v. Turner Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Although the standard under Fed.R.Civ.P. 12(b)(6) does not require detailed factual allegations, a plaintiff must provide more than mere labels and conclusions. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A formulaic recitation of the elements of a cause of action is insufficient. Id. But, unless it is clear the complaint's deficiencies could not be cured through amendment, a pro se plaintiff should be given leave to amend the complaint with notice regarding the complaint's deficiencies. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995); see also Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678) (explaining that courts liberally construe pro se complaints and may only dismiss them “if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”).

II. Discussion

In his proposed Second Amended Complaint (“SAC”), Plaintiff seeks to sue former Governor Steve Sisolak, Attorney General Aaron Ford, and Director of the Legislative Counsel Bureau Brenda Erdoes in their individual and official capacities. He also seeks to sue Former Director of the Legislative Counsel Bureau Rick Combs in his individual capacity and District Attorney Steve Wolfson in his official capacity as well as Clark County and the Clark County Board of Commissioners.

Plaintiff alleges that the Directors of the Legislative Counsel Bureau “have included hundreds of sections in the NRS Code whose terms and provisions are not reflected in any law published in the official Statutes of Nevada” despite being on notice that doing so is improper. ECF No. 56-1 at 4. He also alleges that he unsuccessfully moved in state court to have a particular NRS provision-NRS 200.020-declared invalid because it was not contained in the Statutes of Nevada. Id. at 5-7. Plaintiffs concern (and alleged injury) is that Defendant Wolfson is prosecuting him for a crime that is identified in the NRS but not in the Statutes of Nevada. Id. at 7-8.

Further, Plaintiff explains that he filed three tort claims in August 2019 against the State of Nevada, and each was discarded or suppressed by several Defendants. ECF No. 56-1 at 4-5, 18. The first two claims, which each sought $100,000 in damages, contested the lawfulness of the NRS either because it was improperly copied or included sections that were not originally in the Statutes of Nevada. Id. at 5. The third, also seeking the same monetary relief, alleged that the Nevada Secretary of State failed to keep “all official acts of the Nevada legislature” in violation of the state's constitution. Id. As a result of this failure, Plaintiff was unable to obtain his requested “certified copies of enrolled acts of the Nevada legislature[.]” Id.

In short, the essence of Plaintiff's amended complaint is his desire to invalidate certain (if not all) provisions of the Nevada Revised Statutes, which he considers were improperly codified because they lack basis in the Statutes of Nevada. Id. at 3, 39. He seeks monetary damages, injunctive relief, and declaratory judgment. Id. at 3-4; 43-46.

A. Claim I: Access to the Courts and Due Process^[2]

Plaintiff alleges that he was denied access to the courts and due process when the state court denied his motion to invalidate NRS 200.020 without comparing the provision “against any law found in the official Statutes of Nevada.” ECF No. 56-1 at 6-10. He further asserts that he likely would have prevailed on his motion but for Defendant Wolfson's bad-faith opposition. Id. at 10, 22. But based on the allegations set forth in the SAC, Plaintiff has not shown that he has- or could-state a plausible procedural or substantive due process claim or a claim of denial of access to the courts.

There are two kinds of due process claims: procedural and substantive. “To obtain relief on a procedural due process claim, the plaintiff must establish the existence of ‘(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process.'” Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008) (citation omitted) (brackets in original). At its core, procedural due process requires notice and an opportunity to be heard. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

“The guarantee of substantive due process provides heightened protection against government interference with certain fundamental rights and liberty interests.” Krainski v. Nevada ex rel. Bd. of Regents of the Nev. Sys. of Higher Educ., 616 F.3d 963, 969 (9th Cir. 2010) (internal quotation marks and citation omitted). “To state a substantive due process claim, the plaintiff must show as a threshold matter that a state actor deprived it of a constitutionally protected life, liberty or property interest.” Shanks, 540 F.3d at 1087 (citing Action Apt. Ass'n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1026 (9th Cir. 2007)).

Here, regardless of whether Plaintiff intended to assert a procedural or a substantive due process claim,^[3] he must allege the deprivation of a constitutionally protected property or liberty interest. The Court understands that Plaintiff bases his due process claim on denial of access to the courts because the state court denied Plaintiff's motion to invalidate NRS 200.020 without comparing the provision against the Statutes of Nevada (as would be required, according to Plaintiff, under NV ST 220.170(3)).^[4] ECF No. 56-1 at 8-9. In turn, Plaintiff alleges this rendered the procedure to rebut the validity of a NRS provision under NV ST 220.170(3) meaningless. Id. at 9.

Although “‘[t]he right of access to the courts is a fundamental right protected by the Constitution,'” Plaintiff's theory cannot be the basis for a claim of denial of access to the courts. Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1061 (9th Cir. 2014) (quoting Delew v. Wagner, 143 F.3d 1219, 1222 (9th Cir. 1998)). This is because, as he alleges, he had the opportunity to both file a motion and attend a hearing. ECF No. 56-1 at 8-9 (“At the February 5, 2020 hearing of [my November 27, 2019] motion . . . .”); Christopher v. Harbury, 536 U.S. 403, 414-16 (2002); see also Ringgold-Lockhart, 761 F.3d at 1063 (due process satisfied when a party was provided an opportunity to file an opposing brief and an in-person hearing to argue its position).

Further Plaintiff has not stated a claim that his substantive due process rights were violated by either the state court's denial of his motion or Defendant Wolfson's opposition. ECF No. 56-1 at 7, 22-23. First, the Court finds that Plaintiff cannot assert a substantive due process claim when the basis for that claim is a denial of an access to the courts claim. See ...