Rimer v. State ( 2015 )

 before any answer was filed, and thus, we consider his amended complaint
in our de novo review. NRCP 15(a) ("A party may amend the party's
pleading once as a matter of course at any time before a responsive
pleading is served."); NRCP 7 (listing permissible pleadings, not including
a motion to dismiss) That complaint, however, fails to state a viable
claim for relief. Thus, having considered appellant's appeal statement,
respondents' response thereto, and the record, we conclude that the
district court properly dismissed the action. See Rae v. All American Life
and Gas. Co., 95 Nev. 920, 923, 605 P.2d 196, 197 (1979) (a district court
order will be affirmed on appeal if supported by any of the theories
presented); Nelson v. Sierra Constr. Corp., 77 Nev. 334, 343, 364 P.2d 402,
406 (1961) (upholding a dismissal for failure to state a claim, even though
the district court based the dismissal on different reasons).
Appellant's first amended complaint asserted claims relating
to perceived abuses of the inmate grievance procedure. Appellant has,
however, no constitutional or other right to have the grievance procedure
carried out in a specific manner. Geiger v. Jowers, 404 F.3d 371, 374 (5th
Cir. 2005) ("[An inmate] does not have a federally protected liberty
interest in having these grievances resolved to his satisfaction."); Ramirez
v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) ("[I]nmates lack a separate
constitutional entitlement to a specific prison grievance procedure.");
Massey v. Heiman, 259 F.3d 641, 647 (7th Cir. 2001) ("[T]he Constitution
creates no entitlement to grievance procedures or access to such
procedures voluntarily established by the state." (agreeing with Adams v.
Rice, 40 F.3d 72, 75 (4th Cir. 1994))); Hernandez v. Bennett-Haron, 128
Nev., Adv. Op. 54, 287 P.3d 305, 310 (2012) (explaining that, with regard
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to due process protections under the Nevada Constitution, this court is
guided by federal precedent).
Further, to the extent that appellant asserted otherwise viable
claims for relief with respect to prison conditions, it is unclear that he
properly exhausted the grievance process for those claims. Before suing
the Department of Corrections or any of its employees, an inmate must
exhaust his administrative remedies, unless doing so is futile. NRS
41.0322(1); Abarra v. State, 131 Nev., Adv. Op. 3, 342 P.3d 994, 996
(2015); Berry v. Fell, 131 Nev., Adv. Op. 37, P.3d (Ct. App. 2015);
see also Sapp v. Kimbrell, 623 F.3d 813, 822 (9th Cir. 2010) (explaining
that federal law does not require exhaustion when administrative
remedies effectively are unavailable). Appellant contends that while some
grievances were exhausted, with others he was prevented from exhausting
his administrative remedies by respondents' "willful obstruction" and
"falsified reports," in that some grievances were treated as duplicative and
not addressed or allowed to be resubmitted. But it is not clear from the
complaint and other papers which grievances were exhausted, in part
because appellant failed to provide a "simple, concise, and direct"
statement of the facts, NRCP 8(e)(1), and appellant has not sufficiently
alleged that he was prevented from exhausting his administrative
remedies. One of the things that appellant must show in seeking to be
excused from the exhaustion requirement is "that prison officials screened
his grievance or grievances for reasons inconsistent with or unsupported
by applicable regulations." Sapp, 623 F.3d at 824. Here, from what can
be gleaned from the record, many of appellant's grievances were properly
denied as duplicative, untimely, and inappropriate. Further, appellant
repeatedly grieved those issues, rather than appealing to the next level as
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required by Administrative Regulation 740.03(6) and (8). Accordingly,
appellant has not shown that exhaustion is excused. For the above
reasons, we
ORDER the judgment of the district court AFFIRMED.'
J.
Saitta
Gibbons Pickering
P lektt. dAP , J.
cc: Hon. Nancy L Allf, District Judge
Stanley Earnest Rimer
Attorney General/Carson City
Eighth District Court Clerk
'In light of this order, we deny appellant's July 21, 2015, motion to
supplement his civil proper person appeal statement.
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