                                                      131 Nev., Advance opinion       31
                          IN THE COURT OF APPEALS OF THE STATE OF NEVADA

                    WILLIAM J. BERRY,                                    No. 64750
                    Appellant,
                    vs.
                    PAMELA FEIL; AND DENNIS BROWN,
                                                                                  FILED
                    Respondents.                                                   JUN 1 1 2015

                                                                                          Ti
                                                                                     E K. LINDEMAN
                                                                             CLESKIOF SUP-SAME C
                                                                             BY
                                                                                  CHIEF DEE   I.    ERK


                                                                                                    t
                               Appeal from a district court order dismissing a civ                 rights
                    action. Sixth Judicial District Court, Pershing County; Richard Wagner,
                    Judge.
                               Affirmed.

                    William James Berry, Ely,
                    in Pro Se.

                    Adam Paul Laxalt, Attorney General, and Clark G. Leslie, Senior Deputy
                    Attorney General, Carson City,
                    for Respondent Pamela Feil.

                    Dennis Brown, Lovelock,
                    in Pro Se.


                    BEFORE GIBBONS, C.J., TAO and SILVER, JJ.

                                                    OPINION
                    PER CURIAM:
                                In this opinion, we address whether civil rights complaints
                    filed by inmates under 42 U.S.C. § 1983 in Nevada state courts are subject
                    to the exhaustion of administrative remedies requirement imposed by the
                    federal Prison Litigation Reform Act of 1995's (PLRA) amendment of 42
                    U.S.C. § 1997e(a). We must further determine whether Nevada district

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                   courts are required to stay inmate § 1983 claims filed prior to the
                   exhaustion of administrative remedies so that the inmate can exhaust all
                   available administrative remedies, or whether complaints filed before
                   exhaustion is complete must be dismissed. Below, the district court
                   dismissed appellant's complaint, concluding that § 1997e(a)'s exhaustion
                   requirement applied to appellant's § 1983 claims, that appellant had failed
                   to exhaust his administrative remedies, and that there was no basis for
                   the court to stay his claims to allow him to exhaust those remedies.
                               Because the PLRA's exhaustion requirement applies to any
                   inmate § 1983 civil rights claims regarding prison conditions, regardless of
                   what court the complaint is filed in, the district court properly applied the
                   exhaustion requirement to this case. And since appellant's complaint
                   alleged federal civil rights claims and not state tort claims, the district
                   court did not have the discretion to stay the case to allow appellant to
                   exhaust his administrative remedies. Indeed, because the PLRA makes
                   prefiling exhaustion mandatory for § 1983 civil rights claims challenging
                   conditions of confinement, the district court was required to dismiss,
                   rather than stay, appellant's complaint. Thus, the district court did not
                   err in dismissing appellant's complaint based on his failure to exhaust his
                   administrative remedies prior to filing the complaint.
                                                 BACKGROUND
                               Appellant William J. Berry, an inmate, filed the underlying
                   civil rights complaint against respondents Pamela Feil, the Lovelock
                   Correctional Center law library supervisor, and Dennis Brown, an inmate
                   library clerk, in the Sixth Judicial District Court pursuant to 42 U.S.C.
                   § 1983. In his complaint, Berry alleged that Feil and Brown failed to mail
                   his confidential legal mail and conspired to hide evidence of this alleged
                   transgression, and that Feil retaliated against Berry for filing a grievance
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                     against her by refusing his requests for legal supplies and confiscating his
                     books. Based on these allegations, the complaint asserted violations of
                     Berry's right to free speech under the First Amendment to the United
                     States Constitution and his rights to due process and unobstructed access
                     to the courts under the Fifth and Fourteenth Amendments.
                                 Feil subsequently moved to dismiss the complaint for failure
                     to exhaust administrative remedies. While Feil acknowledged that Berry
                     filed grievances regarding the incidents alleged in his complaint, she
                     asserted he nonetheless failed to exhaust his administrative remedies
                     because he did not complete all the steps of the grievance process as
                     required by federal law. In response, Berry moved to strike the motion to
                     dismiss. Although he did not file a separate, specifically labeled
                     opposition to the motion to dismiss, his motion to strike included
                     substantive arguments addressing the grounds on which Feil sought to
                     have his complaint dismissed, and thus, despite its title, it effectively
                     operated as both a motion to strike and an opposition to Feil's motion.
                     The district court subsequently dismissed Berry's entire complaint
                     without prejudice based on his failure to exhaust his administrative
                     remedies.' This appeal followed.
                                                      ANALYSIS
                                 Congress enacted the Prison Litigation Reform Act of 1995 in
                     an effort to curb a sharp rise in prisoner litigation that had occurred in the
                     years preceding its passage.     Woodford v. Ngo, 548 U.S. 81, 84 (2006).


                           'After the district court dismissed the complaint, Brown filed a
                     motion seeking to dismiss himself from the action. Because the district
                     court had already dismissed the complaint, no action was taken in
                     response to that motion.

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                   Among other things, the PLRA amended 42 U.S.C. § 1997e(a) to provide
                   that "[n]o action shall be brought with respect to prison conditions under
                   [42 U.S.C. § 1983] or any other Federal law, by a prisoner confined in any
                   jail, prison, or other correctional facility until such administrative
                   remedies as are available are exhausted." Prison Litigation Reform Act of
                   1995, Pub. L. No. 104-134, § 803, 110 Stat. 1321-71 (1996) (codified as
                   amended at 42 U.S.C. § 1997e(a) (1996)).
                               In its order dismissing the complaint, the district court noted
                   that § 1997e(a) limits inmates' abilities to file civil rights actions relating
                   to prison conditions by requiring them to first exhaust all available
                   administrative remedies. Thus, because it found Berry failed to exhaust
                   his administrative remedies, the district court concluded Berry's
                   complaint must be dismissed pursuant to the PLRA. On appeal, Berry
                   argues the district court erred in applying the PLRA's exhaustion
                   requirement to his state court civil rights action, even though his case was
                   brought under § 1983. He further argues that, rather than dismissing his
                   action, the district court was required to stay his case to allow him to
                   exhaust his administrative remedies. 2
                               We address each of Berry's arguments below in turn. In
                   addressing these contentions, we must accept all of the factual allegations

                         2In addressing whether he exhausted his administrative remedies,
                   Berry broadly states that an issue on appeal is "[d]id the district court
                   erroneously conclude that [Berry] failed to exhaust [his] administrative
                   remedies?" Berry, however, does not present any arguments explaining
                   how he believes he had exhausted his administrative remedies. Given his
                   failure to provide cogent arguments on this point, we do not address this
                   assignment of error. See Edwards v. Emperor's Garden Rest., 122 Nev.
                   317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (recognizing that appellate
                   assertions not cogently argued need not be considered on appeal).


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                   in the complaint as true and draw all inferences in favor of Berry.         See
                   Buzz Stew, LLC v. City of N. Las Vegas,       124 Nev. 224, 227-28, 181 P.3d
                   670, 672 (2008) (explaining that, on appeal, a court rigorously reviews a
                   dismissal for failure to state a claim, accepting all of the factual
                   allegations in the complaint as true and drawing all inferences in favor of
                   the plaintiff).
                   Applicability of 42 U.S.C. § 1997e(a) to inmate 42 U.S.C. § 1983 civil rights
                   actions filed in Nevada district courts
                                Berry filed a district court civil rights action under 42 U.S.C.
                   § 1983, alleging violations of his constitutional rights under the First,
                   Fifth, and Fourteenth Amendments to the United States Constitution.
                   Under § 1983, a civil rights action may be initiated to seek redress from a
                   person acting under color of law of any state or the federal government
                   who has deprived that party of a right, privilege, or immunity protected by
                   the Constitution or laws of the United States.     See Butler ex rel. Biller v.
                   Bayer, 123 Nev. 450, 458, 168 P.3d 1055, 1061 (2007). Although § 1983
                   actions provide a mechanism for parties to obtain relief for violations of
                   their federal rights, both state and federal courts have jurisdiction over
                   actions initiated pursuant to that statute.    Haywood v. Drown, 556 U.S.
                   729, 731 (2009). And as set forth above, the PLRA's amendment of
                   § 1997e(a) requires the exhaustion of all available administrative
                   remedies before inmates can bring § 1983 civil rights claims challenging
                   conditions of confinement.
                                 Below, the district court relied on § 1997e(a) in dismissing
                   Berry's underlying action based on its determination Berry had failed to
                   exhaust his administrative remedies prior to filing his civil rights
                   complaint. On appeal from this determination, Berry insinuates that
                   § 1997e(a) does not apply to his complaint because it was brought in state,
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                   rather than federal court. Contrary to Berry's argument, however, federal
                   and state courts that have been confronted with this issue have widely
                   recognized that the PLRA's exhaustion requirement applies to § 1983
                   actions filed in state courts.   See, e.g., Johnson v. Louisiana ex rel. La.
                   Dep't of Pub. Safety & Corr., 468 F.3d 278, 280 (5th Cir. 2006); Baker v.
                   Rolnick, 110 P.3d 1284, 1288-89 (Ariz. Ct. App. 2005). 3
                               For example, in Johnson, the United States Court of Appeals
                   for the Fifth Circuit addressed an inmate's § 1983 civil rights complaint
                   that had been removed from state court to federal court, where it was
                   subsequently dismissed on exhaustion grounds under § 1997e(a). 468 F.3d
                   at 279. On appeal from the dismissal order, the inmate-plaintiff argued
                   that § 1997e(a)'s exhaustion requirement did not apply because his
                   complaint was originally brought in state court.      Id.   The Fifth Circuit
                   rejected this argument, however, determining that the language of
                   § 1997e(a) did not limit its application to only those claims filed in federal
                   court. Id. at 280.
                               The Arizona Court of Appeals came to the same conclusion in
                   addressing an appeal from the dismissal of an inmate's § 1983 civil rights
                   action.   Baker, 110 P.3d at 1285. In challenging the dismissal of his
                   complaint, the inmate-plaintiff in Baker argued § 1997e(a) did not apply to
                   actions filed in state courts.   Id. at 1287. The Baker court rejected this


                         3 0ther courts have likewise acknowledged the applicability of the
                   PLRA's exhaustion requirement to § 1983 actions filed in state courts. See
                   Richardson v. Comm'r of Corr., 863 A.2d 754, 756 & n.1 (Conn. App. Ct.
                   2005); Toney v. Briley, 813 N.E.2d 758, 760 (Ill. App. Ct. 2004); Higgason
                   v. Stogsdill, 818 N.E.2d 486, 490 (Ind. Ct. App. 2004); Kellogg v. Neb. Dep't
                   of Corr. Servs., 690 N.W.2d 574, 579 (Neb. 2005); Martin v. Ohio Dep't of
                   Rehab. & Corr., 749 N.E.2d 787, 790 (Ohio Ct. App. 2001).


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                    argument, however, and affirmed the dismissal of the complaint, relying
                    on § 1997e(a)'s "broad and unequivocal" declaration that "no action shall
                    be brought without exhaustion of remedies" and Congress's intent to have
                    state courts uniformly apply federal civil rights laws. Id. at 1288 (internal
                    quotations omitted).
                                We find the reasoning of these decisions persuasive. Not only
                    does § 1997e(a) not include language restricting its applicability to federal
                    court actions, see Johnson, 468 F.3d at 280, but it specifically declares
                    "[n]o action shall be brought with respect to prison conditions under
                    section 1983 of this title" by any inmate until all available administrative
                    remedies have been exhausted. 42 U.S.C. § 1997e(a) (emphasis added).
                    And as the Baker court recognized, the "unequivocal" plain language
                    utilized in § 1997e(a) makes that statute applicable to all § 1983 actions
                    brought by incarcerated individuals to challenge the conditions of their
                    confinement, regardless of whether those actions are filed in state or
                    federal court. Baker, 110 P.3d at 1288; see also Talamantes v. Leyva, 575
                    F.3d 1021, 1023 (9th Cir. 2009) (applying the plain language rule to
                    determine whether a released inmate must still exhaust administrative
                    remedies under § 1997e(a) when filing a civil rights action regarding
                    prison conditions); Allstate Ins. Co. v. Fackett, 125 Nev. 132, 138, 206 P.3d
                    572, 576 (2009) (providing that, to determine legislative intent, Nevada
                    courts first look to the statute's plain language).
                                 Consistent with these decisions, we likewise conclude the
                    PLRA's exhaustion requirement set forth in § 1997e(a) applies to inmate
                    § 1983 civil rights actions challenging prison conditions filed in Nevada
                    state courts.   See Johnson, 468 F.3d at 280; Baker, 110 P.3d at 1288.
                    Here, Berry does not dispute that his complaint, which alleged, among

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                   other things, that Feil and Brown tampered with his legal mail and that
                   Feil retaliated against him for filing a grievance against her, challenged
                   his conditions of confinement. See Powell v. Liberty Mut. Fire Ins. Co., 127
                   Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that issues not
                   raised by a party on appeal are deemed waived); see also Porter v. Nussle,
                   534 U.S. 516, 532 (2002) ("[T]he PLRA's exhaustion requirement applies to
                   all inmate suits about prison life, whether they involve general
                   circumstances or particular episodes, and whether they allege excessive
                   force or some other wrong."). Under these circumstances, the district
                   court did not err in applying § 1997e(a)'s exhaustion requirement to
                   Berry's claims.
                   Nevada district courts may not stay inmate civil rights claims brought
                   under 42 U.S.C. § 1983 to allow exhaustion of administrative remedies
                               Berry next argues that, in dismissing his underlying civil
                   rights action, the district court impermissibly refused to stay his claims so
                   he could exhaust his administrative remedies. 4 While Berry's argument
                   on this point is somewhat vague, he appears to be referring to NRS
                   41.0322(3), which provides that "[a]n action filed by a person in [the
                   custody of the Nevada Department of Corrections seeking to recover
                   compensation for loss or injury] before the exhaustion of the person's
                   administrative remedies must be stayed by the court in which the action is
                   filed until the administrative remedies are exhausted" unless the person


                         4Within   this argument, Berry also asserts the district court abused
                   its discretion by not allowing him to amend his complaint. Because Berry
                   never requested leave to file an amended complaint, however, he has
                   waived any amendment-based arguments. See Old Aztec Mine, Inc. v.
                   Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (holding that a point not
                   urged in the district court is waived on appeal).


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                   has failed to timely file an administrative claim. In addressing this issue
                   below, the district court held NRS 41.0322(3) did not mandate a stay of
                   Berry's complaint to allow him to exhaust his administrative• remedies
                   because he did not raise any state tort claims.
                               NRS 41.0322(3) applies only to inmate claims for "loss of the
                   person's personal property, property damage, personal injuries or any
                   other claim arising out of a tort pursuant to NRS 41.031."          See NRS
                   41.0322(1). Here, Berry's complaint did not allege any state tort claims,
                   and instead, sought relief only for asserted violations of his civil rights
                   under § 1983. Thus, as the district court recognized in dismissing the
                   complaint, NRS 41.0322(3) is inapplicable to Berry's § 1983 civil rights
                   claims and did not require the district court to stay these claims to allow
                   him to exhaust his administrative remedies. 5
                               Moving beyond NRS 41.0322(3), our examination of the
                   Nevada Revised Statutes reveals no statute that could be read as
                   requiring or even authorizing a district court to stay inmate civil rights
                   complaints to allow inmates to exhaust available administrative remedies.
                   Moreover, the federal courts have recognized that, under the PLRA, if an
                   inmate has not exhausted administrative remedies before filing a § 1983
                   civil rights action pertaining to the conditions of the inmate's confinement,
                   dismissal of the complaint is mandatory, see, e.g., Neal v. Goord, 267 F.3d


                         5 Despite rejecting Berry's NRS 41.0322(3)-based argument, the
                   district court nonetheless examined his claims under that statute in a
                   hypothetical context and concluded that his case would still be dismissed
                   pursuant to that statute as Berry failed to timely pursue his
                   administrative remedies. Because we conclude NRS 41.0322(3) does not
                   apply to Berry's § 1983 claims, we need not address the district court's
                   decision in this regard.

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                     116, 122 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle, 534
                     U.S. 516, 532 (2002), and thus a district court may not stay such an action
                     to allow an inmate to exhaust any available administrative remedies.
                     McCoy v. Goord, 255 F. Supp. 2d 233, 254 (S.D.N.Y. 2003).
                                 In Neal, the United States Court of Appeals for the Second
                     Circuit addressed whether the PLRA required the dismissal of an inmate's
                     pre-exhaustion § 1983 civil rights complaint. 267 F.3d at 122. The Second
                     Circuit noted that § 1997e(a) had previously allowed district courts to
                     continue a civil rights case for up to 180 days to allow for the exhaustion of
                     available administrative remedies, but, through the PLRA, Congress had
                     amended § 1997e(a) to provide that "[n]o action shall be brought [by an
                     inmate] with respect to prison conditions under section 1983 of this title or
                     any other Federal law" until all available administrative remedies are
                     exhausted. 42 U.S.C. § 1997e(a); see also Neal, 267 F.3d at 122 (discussing
                     the amendments to § 1997e(a)). In affirming the dismissal of the
                     underlying § 1983 action, the court concluded this amended language
                     clearly and unambiguously requires the exhaustion of administrative
                     remedies prior to commencing a § 1983 civil rights complaint.      Neal, 267
                     F.3d at 122. The Neal court further emphasized that Congress's removal
                     of the continuance provision from § 1997e(a) "lends strong support to the
                     conclusion that dismissal is warranted." Id.
                                 Following the Second Circuit's decision in Neal, the United
                     States District Court for the Southern District of New York looked to
                     Neal's analysis of the PLRA in addressing whether an inmate's pre-
                     exhaustion § 1983 complaint may be stayed, rather than dismissed, to
                     allow the inmate to exhaust administrative remedies.            McCoy, 255
                     F. Supp. 2d at 254. And in resolving this issue, the McCoy court

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                   determined that "[fin the context of § 1983 and the PLRA . . . the district
                   court may not stay the action pending exhaustion, as Congress eliminated
                   the authority to do so by enacting the PLRA. Pre-suit exhaustion is thus
                   required." Id. (citation omitted).
                                State courts have likewise recognized the PLRA's elimination
                   of the 180-day continuance period and the resulting requirement that
                   inmate-plaintiffs exhaust their administrative remedies prior to initiating
                   a § 1983 civil rights complaint in order to avoid dismissal of their actions. 6
                   See State v. Circuit Court for Dane Cnty., 599 N.W.2d 45, 48 n.6, 49 (Wis.
                   Ct. App. 1999). In line with the conclusions reached by the Neal, McCoy,
                   and Dane County courts, we determine that the mandatory exhaustion
                   requirement set forth in § 1997e(a) requires inmate-plaintiffs to exhaust
                   their administrative remedies prior to filing any § 1983 civil rights
                   complaints in Nevada state courts challenging the conditions of their
                   confinement. We further conclude that this mandatory exhaustion
                   requirement prohibits a district court from staying such a complaint to
                   allow an inmate-plaintiff to exhaust administrative remedies.       See Neal,
                   267 F.3d at 122. Instead, when an inmate files a § 1983 civil rights

                         6 In Tennessee, inmates have, by statute, 90 days from the date a
                   complaint regarding any claim subject to review by the prison grievance
                   committee is filed to exhaust their administrative remedies. Tenn. Code
                   Ann. § 41-21-806(a), (c) (West 2014). Addressing the interplay between
                   this statute and § 1997e(a), the Tennessee Court of Appeals concluded the
                   Tennessee statute applies to § 1983 claims and is not preempted by
                   § 1997e(a). Pendleton v. Mills, 73 S.W.3d 115, 129 (Tenn. Ct. App. 2001).
                   As detailed above, however, NRS 41.0322(3) applies only to state tort
                   claims and, unlike Tennessee, Nevada has no statute that could be viewed
                   as inconsistent with the PLRA's mandatory, prefiling exhaustion
                   requirement. As a result, the preemption concerns discussed in Pendleton
                   are not involved here.

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                   complaint in a Nevada district court challenging conditions of confinement
                   without first having exhausted all available administrative remedies, the
                   district court is required to dismiss the complaint.
                               As set forth above, Berry does not dispute that his § 1983 civil
                   rights claims challenged the conditions of his confinement. And while
                   Berry baldly asserts the district court erred in concluding he failed to
                   exhaust his administrative remedies, he provides no argument or
                   explanation as to how he had exhausted these remedies. Thus, the district
                   court did not err in refusing to stay Berry's claims and dismissing the
                   underlying matter based on Berry's failure to exhaust his administrative
                   remedies prior to filingS the action. Accordingly, we affirm the district
                   court's dismissal of Berry's § 1983 civil rights action. 7
                                                                          L


                                                                                      CA.
                                                        Gibbons




                                                        Tao


                                                                                      J.
                                                        Silver


                         7 While Berry summarily presents several other issues on appeal, he
                   fails to provide any substantive arguments regarding these issues and the
                   bases of his appellate concerns on these points cannot be gleaned from the
                   summary issue statements he has provided. Under these circumstances,
                   we decline to consider the remaining issues that Berry presents on appeal.
                   See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d
                   1280, 1288 n.38 (2006) (providing that a court need not consider appellate
                   assertions not supported by cogent arguments).


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