Opinion
No. 60465
05-13-2014
PERCY LAVAE BACON, Appellant, v. JAMES COX, WARDEN; AND THE STATE OF NEVADA BOARD OF PRISON COMMISSIONERS, Respondents.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF REVERSAL AND REMAND
This is a proper person appeal from a district court order dismissing a civil rights and tort action. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.
Appellant initiated the underlying complaint in an effort to recover interest amounts that he alleged respondents had improperly taken from his inmate accounts. Respondents subsequently moved to dismiss the complaint, arguing that appellant had failed to timely file an administrative claim form, as required by NRS 209.243(1) (providing that a claim form must be filed within six-months of the alleged loss or injury), or to otherwise exhaust his administrative remedies in accordance with NRS 41.0322(1). Appellant opposed the motion, arguing that he had timely filed his administrative claim form and that the applicable administrative grievance procedures were not available to him because he had been threatened with retaliation, if he filed further grievances, in the form of being placed in administrative segregation or being transferred to a more secure facility. In addition, appellant later asserted that, because the sweeping of the interest from his accounts was an ongoing issue, it constituted a continuing violation, such that the time for bringing his claims had not expired, rendering dismissal on the bases advanced by respondents improper. The district court ultimately granted the motion and dismissed the case, holding that appellant had not filed a timely administrative claim and that he likewise had not filed any grievances pertaining to the claims at issue in his complaint. This appeal followed. As directed, respondents have filed a response.
In the present matter, the district court's order dismissing appellant's complaint contains no findings regarding the alleged threats of retaliation that appellant argues rendered the grievance process unavailable to him, and thus, does not address the impact of these alleged threats on his failure to exhaust his administrative remedies in accordance with NRS 41.0322(1). The challenged order also fails to address appellant's assertion that the removal of interest from his accounts constituted a continuing violation and whether that argument renders any of the various administrative claim forms included in the record timely and properly submitted, such that appellant may have complied with the requirements of NRS 209.243(1). Having reviewed the documents before us, including the civil proper person appeal statement and response thereto, we conclude that the district court's failure to make adequate findings and otherwise fully address these points in its dismissal order has left us unable to determine whether, under the circumstances presented here, dismissal of the underlying complaint was warranted. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008) (concluding that a "complaint should be dismissed only if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [him or her] to relief"). Accordingly, we reverse the district court's dismissal of the underlying action and remand this matter for further proceedings.
The clerk of this court is directed to file appellant's January 11, 2013, response to respondents' opposition to his request to file an errata. In light of this order, all other requests for relief pending in this matter are denied as moot.
__________, J.
Hardesty
__________, J.
Douglas
__________, J.
Cherry
cc: Hon. Susan Johnson, District Judge
Percy Lavae Bacon
Attorney General/Carson City
Eighth District Court Clerk