                             IN THE SUPREME COURT OF THE STATE OF NEVADA


                      RICHARD A. CASSADY,                                      No. 64015
                      Appellant,
                      vs.
                      C/O R. MAIN; MR. ROBERT LEGRAND,
                      WARDEN; MR. JAMES G. COX,
                                                                                 FILED
                      INDIVIDUALLY; NEVADA                                       FEB 0 1 2016
                      DEPARTMENT OF CORRECTIONS;
                      AND THE STATE OF NEVADA,
                      Respondents.


                                                ORDER OF AFFIRMANCE

                                     This is an appeal from a district court order granting a motion
                      to dismiss in an inmate litigation action. Sixth Judicial District Court,
                      Pershing County; Michael Montero, Judge.
                                     Appellant Richard A. Cassady is an inmate at Lovelock
                      Correctional Center. Respondent R. Main, a correctional officer, searched
                      Cassady's cell and seized a blanket and magazines. Cassady filed a
                      petition requesting relief in the form of a declaratory judgment requiring
                      that respondents adhere and conform to their own administrative
                      regulations, that they be required to ensure that those working for them
                      are held accountable for their failure to comply and conform with
                      respondent Nevada Department of Corrections' (NDOC) administrative
                      regulations, and that Main be sanctioned for repeated failures to adhere to
                      those administrative regulations. The district court granted respondents'
                      motion to dismiss, finding that Cassady has no legally protected right or
                      cognizable interest at stake unless and until the facts alleged have been
                      established.


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                             On appeal, Cassady raises the following issues: (1) whether
                 the district court applied the proper law in dismissing his petition, and (2)
                 whether the district court erred by not granting him leave to file an
                 amended petition.
                 The district court did not err in dismissing Cassady's petition for
                 declaratory relief
                             The standard of review for a dismissal under NRCP 12(b)(5) is
                 rigorous, as this court must presume all facts alleged in the complaint as
                 true and draw all inferences in favor of the non-moving party.    Buzz Stew,
                 LLC v. City of N. Las Vegas,     124 Nev. 224, 227-28, 181 P.3d 670, 672
                 (2008). On appeal from an order granting an NRCP 12(13)(5) motion to
                 dismiss, "[t]he sole issue presented . . . is whether a complaint states a
                 claim for relief." Merluzzi v. Larson, 96 Nev. 409, 411, 610 P.2d 739, 741
                 (1980), overruled on other grounds by Smith v. Clough, 106 Nev. 568, 569-
                 70 n.1 & n.2, 796 P.2d 592, 593-94 n.1 & n.2 (1990). This court's "task is
                 to determine whether ... the challenged pleading sets forth allegations
                 sufficient to make out the elements of a right to relief." Edgar v. Wagner,
                 101 Nev. 226, 227, 699 P.2d 110, 111 (1985). "The test for determining
                 whether the allegations of a [complaint] are sufficient to assert a claim for
                 relief is whether the allegations give fair notice of the nature and basis of
                 [a legally sufficient] claim and the relief requested."    Ravera v. City of
                 Reno, 100 Nev. 68, 70, 675 P.2d 407, 408 (1984); see also W. States Constr.,
                 Inc. v. Michoff, 108 Nev. 931, 936, 840 P.2d 1220, 1223 (1992).




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                          Cassady's petition is not ripe for judicial review
                                The Uniform Declaratory Judgment Act, codified in NRS
                    Chapter 30, grants the district court the "power to declare rights, status
                    and other legal relations whether or not further relief is or could be
                    claimed." NRS 30.030. In Kress v. Corey, this court identified the four
                    elements that must be met before declaratory relief may be granted:
                                (1) there must exist a justiciable controversy; that
                                is to say, a controversy in which a claim of right is
                                asserted against one who has an interest in
                                contesting it; (2) the controversy must be between
                                persons whose interests are adverse; (3) the party
                                seeking declaratory relief must have a legal
                                interest in the controversy, that is to say, a legally
                                protectable interest; and (4) the issue involved in
                                the controversy must be ripe for judicial
                                determination.
                    65 Nev. 1, 26, 189 P.2d 352, 364 (1948); see also Doe v. Bryan, 102 Nev.
                    523, 525, 728 P.2d 443, 444 (1986) (holding that the four elements
                    described in Kress      constituted the requirements for a justiciable
                    controversy in a declaratory relief action).
                                In Herbst Gaming, Inc. v. Heller, this court stated:
                                "[R]ipeness focuses on the timing of the action
                                rather than on the party bringing the action.. . .
                                The factors to be weighed in deciding whether a
                                case is ripe for judicial review include: (1) the
                                hardship to the parties of withholding judicial
                                review, and (2) the suitability of the issues for
                                review."
                    122 Nev. 877, 887, 141 P.3d 1224, 1230-31 (2006) (alteration in original)
                    (quoting In re T.R., 119 Nev. 646, 651, 80 P.3d 1276, 1279 (2003)).




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                               First, Cassady would face no hardship if judicial review is
                  withheld on his petition seeking declaratory relief. As the district court
                  noted, Cassady can still file a properly pleaded civil complaint to address
                  his situation. Secondly, the issues are not suitable for review as there are
                  no established facts. There has been no judicial determination that any of
                  the matters alleged by Cassady constitute violations of the regulations
                  that he cites. As such, the district court would have to engage in
                  speculation and forecast the outcome of any claims regarding respondents'
                  liability.
                               Accordingly, the district court did not err in denying Cassady's
                  petition because it is not yet ripe for judicial review.
                  The district court did not err by dismissing Cassady's petition without
                  leave to amend
                               "A motion for leave to amend is left to the sound discretion of
                  the trial judge, and the trial judge's decision will not be disturbed absent
                  an abuse of discretion."    State, Univ. & Cmty. Coll. Sys. v. Sutton,    120
                  Nev. 972, 988, 103 P.3d 8, 19 (2004); see also Stephens v. S. Nev. Music
                  Co., 89 Nev. 104, 105, 507 P.2d 138, 139 (1973). A district court does not
                  abuse its discretion unless it acts oppressively or arbitrarily.   Goodman v.
                  Goodman, 68 Nev. 484, 487, 236 P.2d 305, 306 (1951).
                               Here, Cassady did not file a motion for leave to amend in the
                  district court. Therefore, we cannot conclude that the district court acted
                  oppressively or arbitrarily, thereby abusing its discretion. Because
                  Nevada law does not impose a duty on the district court to grant leave to
                  amend sua sponte, we cannot say that the district court abused its




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                discretion when it dismissed Cassady's petition without allowing him to
                amend his complaint.
                           Accordingly, the district court did not err by dismissing the
                petition without leave to amend.
                           Therefore, we
                            ORDER the judgment of the district court AFFIRMED.




                cc: Hon. Michael Montero, District Judge
                     Armstrong Teasdale, LLP/Las Vegas
                     Attorney General/Carson City
                     Pershing County Clerk




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