JUN 1 1 2015 

eL T E K. LINDEMAN 

SU ME C 40, # 

CHIEF E 

BY 

ERK 

131 Nev., Advance Opinion 61 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

WILLIAM J. BERRY, 

Appellant, 

vs. 

PAMELA FEIL; AND DENNIS BROWN, 

Respondents. 

No. 64750 

FILED 

Appeal from a district court order dismissing a civiN 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 

(29i z 

filed by inmates under 42 U.S.C. § 198y,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 

4i110 

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 Fell, 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 Fell and Brown failed to mail 

his confidential legal mail and conspired to hide evidence of this alleged 

transgression, and that Fell 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. 1This 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). 

lAfter 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 

2E1 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 

30ther 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. 4While 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 

5Despite 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 Neccip 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] 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 preexhaustion § 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 "[l]n 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 

61n 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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, C.J. 

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 filing the action. Accordingly, we affirm the district 

court's dismissal of Berry's § 1983 civil rights action. 7 

Gibbons 

J. 

Tao 

Silver 

7While 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). 

12