                             IN THE SUPREME COURT OF THE STATE OF NEVADA


                      ANTHONY J. GUARINI,                                      No, 62826
                      Appellant,
                      vs.
                      R. MAIN; ROBERT LEGRAND; JAMES
                      G. COX; AND THE NEVADA
                                                                                     FILED
                      DEPARTMENT OF CORRECTIONS,                                      FEB 0 1 2016
                      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; Richard Wagner, Judge.
                                     Appellant Anthony J. Guarini is an inmate at Lovelock
                      Correctional Center. Respondent R. Main, a correctional officer, searched
                      Guarini's cell and confiscated Guarini's shoes. Guarini 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 Guarini has no legally protected right or
                      cognizable interest at stake unless and until the facts alleged have been
                      established.
                                     On appeal, Guarini raises the following issues: (1) whether the
                      district court applied the proper law in dismissing his petition, and (2)


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                   whether the district court erred by not granting him leave to file an
                   amended petition.
                   The district court did not err in dismissing Guarini'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(b)(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).
                         Guarini'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:


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                            (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, 25-26, 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 TR., 119 Nev. 646, 651, 80 P.3d 1276, 1279 (2003)).
                            First, Guarini would face no hardship if judicial review is
                withheld on his petition seeking declaratory relief. As the district court
                noted, Guarini 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 Guarini 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.

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                            Accordingly, the district court did not err in denying Guarini's
                petition because it is not yet ripe for judicial review.
                The district court did not err by dismissing Guarini'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, Guarini did not file a motion for leave to amend in the
                district court. 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 discretion when it dismissed Guarini'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.




                                                                                   ,   J.


                                                                                       J.
                                                      Gibbons




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




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