                                                      131 Nev., Advance Opinion       5
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                   DAVID ABARRA,                                           No. 62107
                   Appellant,
                   vs.
                   THE STATE OF NEVADA,                                              FEB 0 5 2015
                   Respondent.
                                                                                      VVIIA K. L. I:Vr IAN
                                                                                   Tr,....
                                                                               HIFFEV                   CSVI
                                                                               BY
                                                                                    CHIEF DEP!): L,LERK


                               Appeal from a district court order granting a motion to Wsmiss
                   for failure to exhaust administrative remedies. First Judicial District
                   Court, Carson City; James Todd Russell, Judge.
                               Affirmed in part, reversed in part, and remanded.

                   Robison Belaustegui Sharp & Low and Therese M. Shanks and Kent R.
                   Robison, Reno,
                   for Appellant.

                   Catherine Cortez Masto, Attorney General, and Clark G. Leslie, Senior
                   Deputy Attorney General, Carson City,
                   for Respondent.




                   BEFORE PARRAGUIRRE, SAITTA and PICKERING, JJ.

                                                    OPINION
                   By the Court, PARRAGUIRRE, J.:
                               In this appeal, we are asked to determine whether the district
                   court erred in dismissing appellant's complaint against various state
                   entities and prison officials for failure to exhaust administrative remedies.
                   Additionally, we are asked to determine whether appellant stated a due
                   process claim in his complaint. We hold that the district court erred in

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                   concluding that appellant failed to exhaust his administrative remedies;
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                 however, the district court correctly determined that appellant failed to
                 state a due process claim. Therefore, we affirm in part, reverse in part,
                 and remand.
                                                    FACTS
                               In February 2011, a correctional officer at Northern Nevada
                 Correctional Center (NNCC) found appellant David Abarra, an NNCC
                 inmate, carrying 21 pills, a contraband pornographic magazine that
                 included a note stating that an unspecified item or service would be "the
                 usual price," and another inmate's completed W-2 form. NNCC charged
                 Abarra with, among other things, unauthorized trading or bartering and
                 providing legal services for a fee. Abarra pleaded guilty to bartering but
                 pleaded not guilty to providing legal services for a fee (an "MJ29"
                 violation).
                               At a disciplinary hearing, Abarra stated that although he was
                 guilty of passing contraband, the "usual price" note was in reference to the
                 magazine itself and that he was returning the W-2 to another prisoner as
                 part of his work as a prison law clerk. The NNCC convicted Abarra of the
                 MJ29 violation and, as punishment, removed him from his position as a
                 law clerk.
                               Abarra challenged the MJ29 discipline through an informal
                 grievance, followed by a first-level formal grievance.' According to the
                 first-level grievance, Abarra disagreed "with the finding of guilt on the
                 MJ29. There is no showing of any legal work being done or any proof of


                       "The prison's grievance process requires an inmate to first file an
                 informal grievance, followed by first- and second-level formal grievances.
                 See generally NDOC AR 740.


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                 fees being charged." He also disagreed with the severity of his
                 punishment. In response, Abarra received a letter from NNCC's associate
                 warden stating that Abarra "exhausted the grievance process on this
                 issue, therefore [his grievance] is moot and no further response is forth
                 coming [sic]."
                             Thereafter, Abarra filed a complaint in district court asserting
                 five claims: (1) improperly filing the MJ29 disciplinary charge, (2) refusing
                 to correct the improper MJ29 charge at the disciplinary hearing, (3)
                 improperly convicting him of violating MJ29, (4) violating his due process
                 rights by refusing to hear his grievance appeals, and (5) retaliation for
                 exercising his First Amendment rights. The State filed a motion to
                 dismiss, and the district court concluded that dismissal was proper
                 because Abarra failed to exhaust the grievance process. According to the
                 district court, Abarra did not exhaust claims one (improper filing), two
                 (failure to correct), four (due process), and five (first amendment) because
                 his grievance only addressed claim three (the actual finding of guilt).
                 Further, Abarra did not exhaust claim three (improper finding of guilt)
                 because he never filed a second-level grievance. The district court also
                 dismissed Abarra's fourth claim (due process) because he had no liberty
                 interest in a disciplinary appeals process. Abarra now appeals.
                                                DISCUSSION
                             On appeal, Abarra argues that (1) he exhausted the
                 administrative remedies for claim three because the associate warden's
                 letter rendered pursuit of further remedies futile; (2) he exhausted the
                 administrative remedies for claims one, two, four, and five because they
                 were included in his grievances; and (3) he adequately pleaded a due
                 process claim.

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                                This court reviews de novo an order granting dismissal under
                  NRCP 12(b)(5).     Buzz Stew, LLC v. City of N. Las Vegas,     124 Nev. 224,
                  227-28, 181 P.3d 670, 672 (2008).
                  Abarra exhausted the administrative remedies for claim three
                                In order to initiate an action for damages against the
                  Department of Corrections, a prisoner must first exhaust his or her
                  administrative remedies. NRS 41.0322(1). However, the exhaustion
                  doctrine only applies to available administrative remedies. State, Dep't of
                  Taxation v. Masco Builder Cabinet Grp., 129 Nev.         , 312 P.3d 475,
                  478 (2013). To that end, this court has declined to require exhaustion
                  "when a resort to administrative remedies would be futile."         Malecon
                  Tobacco, LLC v. State, Dep't of Taxation, 118 Nev. 837, 839, 59 P.3d 474,
                  476 (2002).
                                NNCC's associate warden responded to Abarra's first-level
                  grievance with a letter stating that Abarra "exhausted the grievance
                  process" and that "no further response is forth coming [sic]." This letter
                  forestalls, in no uncertain terms, any further efforts by Abarra to pursue
                  his grievance. Further efforts by Abarra would have been futile, meaning
                  he fulfilled the exhaustion requirement set out in NRS 41.0322(1) for
                  claim three and any other claims asserted through his first-level
                  grievance. See id.
                  Abarra exhausted the administrative remedies for claims one, two, four,
                  and five
                                Like NRS 41.0322(1), the federal Prison Litigation Reform Act
                  (PLRA) requires prisoners to exhaust administrative remedies before
                  filing suit. 42 U.S.C. § 1997e(a) (2012). Under the PLRA, a prison's
                  grievance process defines w[t]he level of detail necessary in a grievance to
                  comply with the grievance procedures." Akhtar v. Mesa, 698 F.3d 1202,
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                 1211 (9th Cir. 2012) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). If
                 the grievance procedures do not "instruct prisoners on what precise facts
                 must be alleged in a grievance, 'a grievance suffices if it alerts the prison
                 to the nature of the wrong for which redress is sought."         Id. (quoting
                 Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009)). Thus, "[a]
                 grievance need not include legal terminology or legal theories," nor does it
                 need to "contain every fact necessary to prove each element of an eventual
                 legal claim." Griffin, 557 F.3d at 1120. This is in accord with Nevada's
                 own jurisprudence, where "[a] plaintiff who fails to use the precise legalese
                 in describing his grievance but who sets forth the facts which support his
                 complaint thus satisfies the requisites of notice pleading."        Liston v.
                 LVMPD, 111 Nev. 1575, 1578, 908 P.2d 720, 723 (1995).
                             The pertinent prison regulations require a first-level grievance
                 to consist of "a signed, sworn declaration of facts that form the basis for a
                 claim." NDOC AR 740.06 § 2. The grievance procedures do not require
                 more than the underlying facts, and they do not require a separate
                 grievance for each legal theory. Here, Abarra's grievance provides the
                 "facts that form the basis for a claim." Id. All of Abarra's claims revolve
                 around hisS contentions that he was improperly found guilty of and
                 punished for the MJ29 violation. His grievance sets forth those facts.
                 Therefore, the prison had sufficient notice of claims one, two, four, and
                 five. 2 Accordingly, Abarra fulfilled the exhaustion requirement for claims
                 one, two, four, and five because they were included in the grievances he

                       2Indeed, requiring greater specificity would undermine the purpose
                 of a notice pleading standard for grievances. See Griffin, 557 F.3d at 1120
                 ("The primary purpose of a grievance is to alert the prison to a problem
                 and facilitate its resolution, not to lay groundwork for litigation.").


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                submitted, and the associate warden's letter made continued efforts at
                exhaustion futile.
                Abarra failed to state a due process claim
                             Due process requires that, at a minimum, "some evidence"
                supports disciplinary findings. Burnsworth u. Gunderson, 179 F.3d 771,
                775 (9th Cir. 1999). Abarra failed to state a due process claim because
                some evidence supports the disciplinary findings against him. Abarra was
                found guilty of providing legal services for a fee based on his possession of
                another inmate's W-2 and a note stating that an unspecified item would be
                "the usual price." Although the conclusion that the note and W-2 were
                related is tenuous, it cannot be said that these facts do not constitute some
                evidence. The district court properly dismissed claim four because the
                State presented some evidence to support the disciplinary findings.
                             Accordingly, we reverse the district court's order dismissing
                Abarra's complaint in part and affirm in part; we remand this matter for
                further proceedings.




                We concur:


                                             ,   J.
                Saitta


                                                 J.




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