131 Nev., Advance opinion 31
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
WILLIAM J. BERRY, No. 64750
Appellant,
vs.
PAMELA FEIL; AND DENNIS BROWN,
FILED
Respondents. JUN 1 1 2015
Ti
E K. LINDEMAN
CLESKIOF SUP-SAME C
BY
CHIEF DEE I. ERK
t
Appeal from a district court order dismissing a civ rights
action. Sixth Judicial District Court, Pershing County; Richard Wagner,
Judge.
Affirmed.
William James Berry, Ely,
in Pro Se.
Adam Paul Laxalt, Attorney General, and Clark G. Leslie, Senior Deputy
Attorney General, Carson City,
for Respondent Pamela Feil.
Dennis Brown, Lovelock,
in Pro Se.
BEFORE GIBBONS, C.J., TAO and SILVER, JJ.
OPINION
PER CURIAM:
In this opinion, we address whether civil rights complaints
filed by inmates under 42 U.S.C. § 1983 in Nevada state courts are subject
to the exhaustion of administrative remedies requirement imposed by the
federal Prison Litigation Reform Act of 1995's (PLRA) amendment of 42
U.S.C. § 1997e(a). We must further determine whether Nevada district
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courts are required to stay inmate § 1983 claims filed prior to the
exhaustion of administrative remedies so that the inmate can exhaust all
available administrative remedies, or whether complaints filed before
exhaustion is complete must be dismissed. Below, the district court
dismissed appellant's complaint, concluding that § 1997e(a)'s exhaustion
requirement applied to appellant's § 1983 claims, that appellant had failed
to exhaust his administrative remedies, and that there was no basis for
the court to stay his claims to allow him to exhaust those remedies.
Because the PLRA's exhaustion requirement applies to any
inmate § 1983 civil rights claims regarding prison conditions, regardless of
what court the complaint is filed in, the district court properly applied the
exhaustion requirement to this case. And since appellant's complaint
alleged federal civil rights claims and not state tort claims, the district
court did not have the discretion to stay the case to allow appellant to
exhaust his administrative remedies. Indeed, because the PLRA makes
prefiling exhaustion mandatory for § 1983 civil rights claims challenging
conditions of confinement, the district court was required to dismiss,
rather than stay, appellant's complaint. Thus, the district court did not
err in dismissing appellant's complaint based on his failure to exhaust his
administrative remedies prior to filing the complaint.
BACKGROUND
Appellant William J. Berry, an inmate, filed the underlying
civil rights complaint against respondents Pamela Feil, the Lovelock
Correctional Center law library supervisor, and Dennis Brown, an inmate
library clerk, in the Sixth Judicial District Court pursuant to 42 U.S.C.
§ 1983. In his complaint, Berry alleged that Feil and Brown failed to mail
his confidential legal mail and conspired to hide evidence of this alleged
transgression, and that Feil retaliated against Berry for filing a grievance
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against her by refusing his requests for legal supplies and confiscating his
books. Based on these allegations, the complaint asserted violations of
Berry's right to free speech under the First Amendment to the United
States Constitution and his rights to due process and unobstructed access
to the courts under the Fifth and Fourteenth Amendments.
Feil subsequently moved to dismiss the complaint for failure
to exhaust administrative remedies. While Feil acknowledged that Berry
filed grievances regarding the incidents alleged in his complaint, she
asserted he nonetheless failed to exhaust his administrative remedies
because he did not complete all the steps of the grievance process as
required by federal law. In response, Berry moved to strike the motion to
dismiss. Although he did not file a separate, specifically labeled
opposition to the motion to dismiss, his motion to strike included
substantive arguments addressing the grounds on which Feil sought to
have his complaint dismissed, and thus, despite its title, it effectively
operated as both a motion to strike and an opposition to Feil's motion.
The district court subsequently dismissed Berry's entire complaint
without prejudice based on his failure to exhaust his administrative
remedies.' This appeal followed.
ANALYSIS
Congress enacted the Prison Litigation Reform Act of 1995 in
an effort to curb a sharp rise in prisoner litigation that had occurred in the
years preceding its passage. Woodford v. Ngo, 548 U.S. 81, 84 (2006).
'After the district court dismissed the complaint, Brown filed a
motion seeking to dismiss himself from the action. Because the district
court had already dismissed the complaint, no action was taken in
response to that motion.
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Among other things, the PLRA amended 42 U.S.C. § 1997e(a) to provide
that "[n]o action shall be brought with respect to prison conditions under
[42 U.S.C. § 1983] or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted." Prison Litigation Reform Act of
1995, Pub. L. No. 104-134, § 803, 110 Stat. 1321-71 (1996) (codified as
amended at 42 U.S.C. § 1997e(a) (1996)).
In its order dismissing the complaint, the district court noted
that § 1997e(a) limits inmates' abilities to file civil rights actions relating
to prison conditions by requiring them to first exhaust all available
administrative remedies. Thus, because it found Berry failed to exhaust
his administrative remedies, the district court concluded Berry's
complaint must be dismissed pursuant to the PLRA. On appeal, Berry
argues the district court erred in applying the PLRA's exhaustion
requirement to his state court civil rights action, even though his case was
brought under § 1983. He further argues that, rather than dismissing his
action, the district court was required to stay his case to allow him to
exhaust his administrative remedies. 2
We address each of Berry's arguments below in turn. In
addressing these contentions, we must accept all of the factual allegations
2In addressing whether he exhausted his administrative remedies,
Berry broadly states that an issue on appeal is "[d]id the district court
erroneously conclude that [Berry] failed to exhaust [his] administrative
remedies?" Berry, however, does not present any arguments explaining
how he believes he had exhausted his administrative remedies. Given his
failure to provide cogent arguments on this point, we do not address this
assignment of error. See Edwards v. Emperor's Garden Rest., 122 Nev.
317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (recognizing that appellate
assertions not cogently argued need not be considered on appeal).
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in the complaint as true and draw all inferences in favor of Berry. See
Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d
670, 672 (2008) (explaining that, on appeal, a court rigorously reviews a
dismissal for failure to state a claim, accepting all of the factual
allegations in the complaint as true and drawing all inferences in favor of
the plaintiff).
Applicability of 42 U.S.C. § 1997e(a) to inmate 42 U.S.C. § 1983 civil rights
actions filed in Nevada district courts
Berry filed a district court civil rights action under 42 U.S.C.
§ 1983, alleging violations of his constitutional rights under the First,
Fifth, and Fourteenth Amendments to the United States Constitution.
Under § 1983, a civil rights action may be initiated to seek redress from a
person acting under color of law of any state or the federal government
who has deprived that party of a right, privilege, or immunity protected by
the Constitution or laws of the United States. See Butler ex rel. Biller v.
Bayer, 123 Nev. 450, 458, 168 P.3d 1055, 1061 (2007). Although § 1983
actions provide a mechanism for parties to obtain relief for violations of
their federal rights, both state and federal courts have jurisdiction over
actions initiated pursuant to that statute. Haywood v. Drown, 556 U.S.
729, 731 (2009). And as set forth above, the PLRA's amendment of
§ 1997e(a) requires the exhaustion of all available administrative
remedies before inmates can bring § 1983 civil rights claims challenging
conditions of confinement.
Below, the district court relied on § 1997e(a) in dismissing
Berry's underlying action based on its determination Berry had failed to
exhaust his administrative remedies prior to filing his civil rights
complaint. On appeal from this determination, Berry insinuates that
§ 1997e(a) does not apply to his complaint because it was brought in state,
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rather than federal court. Contrary to Berry's argument, however, federal
and state courts that have been confronted with this issue have widely
recognized that the PLRA's exhaustion requirement applies to § 1983
actions filed in state courts. See, e.g., Johnson v. Louisiana ex rel. La.
Dep't of Pub. Safety & Corr., 468 F.3d 278, 280 (5th Cir. 2006); Baker v.
Rolnick, 110 P.3d 1284, 1288-89 (Ariz. Ct. App. 2005). 3
For example, in Johnson, the United States Court of Appeals
for the Fifth Circuit addressed an inmate's § 1983 civil rights complaint
that had been removed from state court to federal court, where it was
subsequently dismissed on exhaustion grounds under § 1997e(a). 468 F.3d
at 279. On appeal from the dismissal order, the inmate-plaintiff argued
that § 1997e(a)'s exhaustion requirement did not apply because his
complaint was originally brought in state court. Id. The Fifth Circuit
rejected this argument, however, determining that the language of
§ 1997e(a) did not limit its application to only those claims filed in federal
court. Id. at 280.
The Arizona Court of Appeals came to the same conclusion in
addressing an appeal from the dismissal of an inmate's § 1983 civil rights
action. Baker, 110 P.3d at 1285. In challenging the dismissal of his
complaint, the inmate-plaintiff in Baker argued § 1997e(a) did not apply to
actions filed in state courts. Id. at 1287. The Baker court rejected this
3 0ther courts have likewise acknowledged the applicability of the
PLRA's exhaustion requirement to § 1983 actions filed in state courts. See
Richardson v. Comm'r of Corr., 863 A.2d 754, 756 & n.1 (Conn. App. Ct.
2005); Toney v. Briley, 813 N.E.2d 758, 760 (Ill. App. Ct. 2004); Higgason
v. Stogsdill, 818 N.E.2d 486, 490 (Ind. Ct. App. 2004); Kellogg v. Neb. Dep't
of Corr. Servs., 690 N.W.2d 574, 579 (Neb. 2005); Martin v. Ohio Dep't of
Rehab. & Corr., 749 N.E.2d 787, 790 (Ohio Ct. App. 2001).
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argument, however, and affirmed the dismissal of the complaint, relying
on § 1997e(a)'s "broad and unequivocal" declaration that "no action shall
be brought without exhaustion of remedies" and Congress's intent to have
state courts uniformly apply federal civil rights laws. Id. at 1288 (internal
quotations omitted).
We find the reasoning of these decisions persuasive. Not only
does § 1997e(a) not include language restricting its applicability to federal
court actions, see Johnson, 468 F.3d at 280, but it specifically declares
"[n]o action shall be brought with respect to prison conditions under
section 1983 of this title" by any inmate until all available administrative
remedies have been exhausted. 42 U.S.C. § 1997e(a) (emphasis added).
And as the Baker court recognized, the "unequivocal" plain language
utilized in § 1997e(a) makes that statute applicable to all § 1983 actions
brought by incarcerated individuals to challenge the conditions of their
confinement, regardless of whether those actions are filed in state or
federal court. Baker, 110 P.3d at 1288; see also Talamantes v. Leyva, 575
F.3d 1021, 1023 (9th Cir. 2009) (applying the plain language rule to
determine whether a released inmate must still exhaust administrative
remedies under § 1997e(a) when filing a civil rights action regarding
prison conditions); Allstate Ins. Co. v. Fackett, 125 Nev. 132, 138, 206 P.3d
572, 576 (2009) (providing that, to determine legislative intent, Nevada
courts first look to the statute's plain language).
Consistent with these decisions, we likewise conclude the
PLRA's exhaustion requirement set forth in § 1997e(a) applies to inmate
§ 1983 civil rights actions challenging prison conditions filed in Nevada
state courts. See Johnson, 468 F.3d at 280; Baker, 110 P.3d at 1288.
Here, Berry does not dispute that his complaint, which alleged, among
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other things, that Feil and Brown tampered with his legal mail and that
Feil retaliated against him for filing a grievance against her, challenged
his conditions of confinement. See Powell v. Liberty Mut. Fire Ins. Co., 127
Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that issues not
raised by a party on appeal are deemed waived); see also Porter v. Nussle,
534 U.S. 516, 532 (2002) ("[T]he PLRA's exhaustion requirement applies to
all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive
force or some other wrong."). Under these circumstances, the district
court did not err in applying § 1997e(a)'s exhaustion requirement to
Berry's claims.
Nevada district courts may not stay inmate civil rights claims brought
under 42 U.S.C. § 1983 to allow exhaustion of administrative remedies
Berry next argues that, in dismissing his underlying civil
rights action, the district court impermissibly refused to stay his claims so
he could exhaust his administrative remedies. 4 While Berry's argument
on this point is somewhat vague, he appears to be referring to NRS
41.0322(3), which provides that "[a]n action filed by a person in [the
custody of the Nevada Department of Corrections seeking to recover
compensation for loss or injury] before the exhaustion of the person's
administrative remedies must be stayed by the court in which the action is
filed until the administrative remedies are exhausted" unless the person
4Within this argument, Berry also asserts the district court abused
its discretion by not allowing him to amend his complaint. Because Berry
never requested leave to file an amended complaint, however, he has
waived any amendment-based arguments. See Old Aztec Mine, Inc. v.
Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (holding that a point not
urged in the district court is waived on appeal).
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has failed to timely file an administrative claim. In addressing this issue
below, the district court held NRS 41.0322(3) did not mandate a stay of
Berry's complaint to allow him to exhaust his administrative• remedies
because he did not raise any state tort claims.
NRS 41.0322(3) applies only to inmate claims for "loss of the
person's personal property, property damage, personal injuries or any
other claim arising out of a tort pursuant to NRS 41.031." See NRS
41.0322(1). Here, Berry's complaint did not allege any state tort claims,
and instead, sought relief only for asserted violations of his civil rights
under § 1983. Thus, as the district court recognized in dismissing the
complaint, NRS 41.0322(3) is inapplicable to Berry's § 1983 civil rights
claims and did not require the district court to stay these claims to allow
him to exhaust his administrative remedies. 5
Moving beyond NRS 41.0322(3), our examination of the
Nevada Revised Statutes reveals no statute that could be read as
requiring or even authorizing a district court to stay inmate civil rights
complaints to allow inmates to exhaust available administrative remedies.
Moreover, the federal courts have recognized that, under the PLRA, if an
inmate has not exhausted administrative remedies before filing a § 1983
civil rights action pertaining to the conditions of the inmate's confinement,
dismissal of the complaint is mandatory, see, e.g., Neal v. Goord, 267 F.3d
5 Despite rejecting Berry's NRS 41.0322(3)-based argument, the
district court nonetheless examined his claims under that statute in a
hypothetical context and concluded that his case would still be dismissed
pursuant to that statute as Berry failed to timely pursue his
administrative remedies. Because we conclude NRS 41.0322(3) does not
apply to Berry's § 1983 claims, we need not address the district court's
decision in this regard.
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116, 122 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534
U.S. 516, 532 (2002), and thus a district court may not stay such an action
to allow an inmate to exhaust any available administrative remedies.
McCoy v. Goord, 255 F. Supp. 2d 233, 254 (S.D.N.Y. 2003).
In Neal, the United States Court of Appeals for the Second
Circuit addressed whether the PLRA required the dismissal of an inmate's
pre-exhaustion § 1983 civil rights complaint. 267 F.3d at 122. The Second
Circuit noted that § 1997e(a) had previously allowed district courts to
continue a civil rights case for up to 180 days to allow for the exhaustion of
available administrative remedies, but, through the PLRA, Congress had
amended § 1997e(a) to provide that "[n]o action shall be brought [by an
inmate] with respect to prison conditions under section 1983 of this title or
any other Federal law" until all available administrative remedies are
exhausted. 42 U.S.C. § 1997e(a); see also Neal, 267 F.3d at 122 (discussing
the amendments to § 1997e(a)). In affirming the dismissal of the
underlying § 1983 action, the court concluded this amended language
clearly and unambiguously requires the exhaustion of administrative
remedies prior to commencing a § 1983 civil rights complaint. Neal, 267
F.3d at 122. The Neal court further emphasized that Congress's removal
of the continuance provision from § 1997e(a) "lends strong support to the
conclusion that dismissal is warranted." Id.
Following the Second Circuit's decision in Neal, the United
States District Court for the Southern District of New York looked to
Neal's analysis of the PLRA in addressing whether an inmate's pre-
exhaustion § 1983 complaint may be stayed, rather than dismissed, to
allow the inmate to exhaust administrative remedies. McCoy, 255
F. Supp. 2d at 254. And in resolving this issue, the McCoy court
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determined that "[fin the context of § 1983 and the PLRA . . . the district
court may not stay the action pending exhaustion, as Congress eliminated
the authority to do so by enacting the PLRA. Pre-suit exhaustion is thus
required." Id. (citation omitted).
State courts have likewise recognized the PLRA's elimination
of the 180-day continuance period and the resulting requirement that
inmate-plaintiffs exhaust their administrative remedies prior to initiating
a § 1983 civil rights complaint in order to avoid dismissal of their actions. 6
See State v. Circuit Court for Dane Cnty., 599 N.W.2d 45, 48 n.6, 49 (Wis.
Ct. App. 1999). In line with the conclusions reached by the Neal, McCoy,
and Dane County courts, we determine that the mandatory exhaustion
requirement set forth in § 1997e(a) requires inmate-plaintiffs to exhaust
their administrative remedies prior to filing any § 1983 civil rights
complaints in Nevada state courts challenging the conditions of their
confinement. We further conclude that this mandatory exhaustion
requirement prohibits a district court from staying such a complaint to
allow an inmate-plaintiff to exhaust administrative remedies. See Neal,
267 F.3d at 122. Instead, when an inmate files a § 1983 civil rights
6 In Tennessee, inmates have, by statute, 90 days from the date a
complaint regarding any claim subject to review by the prison grievance
committee is filed to exhaust their administrative remedies. Tenn. Code
Ann. § 41-21-806(a), (c) (West 2014). Addressing the interplay between
this statute and § 1997e(a), the Tennessee Court of Appeals concluded the
Tennessee statute applies to § 1983 claims and is not preempted by
§ 1997e(a). Pendleton v. Mills, 73 S.W.3d 115, 129 (Tenn. Ct. App. 2001).
As detailed above, however, NRS 41.0322(3) applies only to state tort
claims and, unlike Tennessee, Nevada has no statute that could be viewed
as inconsistent with the PLRA's mandatory, prefiling exhaustion
requirement. As a result, the preemption concerns discussed in Pendleton
are not involved here.
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complaint in a Nevada district court challenging conditions of confinement
without first having exhausted all available administrative remedies, the
district court is required to dismiss the complaint.
As set forth above, Berry does not dispute that his § 1983 civil
rights claims challenged the conditions of his confinement. And while
Berry baldly asserts the district court erred in concluding he failed to
exhaust his administrative remedies, he provides no argument or
explanation as to how he had exhausted these remedies. Thus, the district
court did not err in refusing to stay Berry's claims and dismissing the
underlying matter based on Berry's failure to exhaust his administrative
remedies prior to filingS the action. Accordingly, we affirm the district
court's dismissal of Berry's § 1983 civil rights action. 7
L
CA.
Gibbons
Tao
J.
Silver
7 While Berry summarily presents several other issues on appeal, he
fails to provide any substantive arguments regarding these issues and the
bases of his appellate concerns on these points cannot be gleaned from the
summary issue statements he has provided. Under these circumstances,
we decline to consider the remaining issues that Berry presents on appeal.
See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d
1280, 1288 n.38 (2006) (providing that a court need not consider appellate
assertions not supported by cogent arguments).
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