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In regard to the district court's conclusions that appellant had 

not exhausted his administrative remedies, the court found that appellant 

failed to comply with the time requirements for filing his grievances in 

this matter. In dismissing on that basis, the court cited NDOC AR 

740.09(4), which states that an "inmate shall not be given additional time 

to re-submit the grievance in the proper form." (Emphasis omitted). 

While this citation was accurate, the district court failed to consider 

subsection (B) of NDOC AR 740.09(4), which provides that "[i]f the 

timeframe has been exhausted prior to the inmate receiving [notice that 

he or she used the wrong form in filing the grievance], the inmate has five 

(5) days from the date it was received to re-submit" the grievance. 

Here, the record demonstrates that appellant timely filed his 

informal grievance and his signature on the denial of that informal 

grievance shows that it was returned to him on February 23, 2011. 

Appellant then timely attempted to appeal the denial of his informal 

grievance one day later, but initially filed this first level grievance on the 

wrong form. SeeNDOC AR 740.05(12)(A) (requiring an inmate to file an 

appeal from the denial of an informal grievance within five days of 

receiving the denial). On March 8, 2011, after the time for filing his first 

level grievance had expired, appellant received notice that the grievance 

had been filed on the wrong form. On the same day, appellant 

resubmitted his first level grievance on the correct form. Thus, although 

his first level grievance was not submitted on the proper form until after 

the expiration of the time to appeal the denial of this informal grievance, 

his first level grievance was nonetheless timely under the regulations. See 

NDOC AR 740.09(4)(B) (explaining that an inmate has five days to 

resubmit a grievance after receiving notice that he or she had failed to 

submit the grievance in the proper form). And when appellant's first level 

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grievance was denied as untimely, he timely filed a second level grievance. 

Thus, on consideration of the parties' arguments and the record on appeal 

and drawing all inferences in appellant's favor, we conclude that the 

district court erred in dismissing the action below for failure to properly 

exhaust available administrative remedies before the filing of the 

underlying action.' See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 

224, 227-28, 181 P.3d 670, 672 (2008) (explaining that this 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). 

In regard to the district court's dismissal of the action against 

respondent Byrne, we conclude that it properly dismissed the action 

against Byrne as appellant was improperly asserting a respondeat 

superior theory of liability against him. See Ashcroft v. Iqbal, 556 U.S. 

662, 676 (2009) (providing that a government official is not liable under 

respondeat superior for the unconstitutional actions of his subordinates); 

see also Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (explaining 

that a supervisor's denial of a grievance alone does not amount to an 

active unconstitutional action for which he or she can be held liable). 

"In their response, respondents argue that the dismissal was proper 

because appellant consented to the granting of the motion to dismiss by 

failing to oppose it. On the day that the order granting the motion to 

dismiss was filed, however, appellant filed a request for permission to 

respond to any "oppositions" filed by respondents, asserting that 

respondents frequently fail to serve dismissal motions on inmates, and 

thus, he wished to reserve his right to respond to any dismissal motions 

filed by respondents. Appellant did not seem to be aware that respondents 

had already filed a motion to dismiss. Under these circumstances, we 

conclude that appellant did not consent to the granting of the motion to 

dismiss. 

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' J. 

Parraguirre 

Cherry 

Further, we conclude that the district court also properly dismissed the 

action against respondents Byrne, Feil, and Jenkins in their official 

capacities, see Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 

(1989) (explaining that a state official cannot be sued under 42 U.S.C. § 

1983 in his or her official capacity), and, to the extent that appellant 

attempted to assert criminal claims against respondents, the district court 

properly dismissed those claims because appellant does not have the 

authority to bring a criminal action. See generally NRS 169.055 

(explaining that a criminal action is brought by the state). 

For the reasons set forth above, we affirm the district court's 

dismissal of the action against respondent Byrne and against respondents 

in their official capacities, and we affirm the dismissal of appellant's 

request that criminal charges be brought against the respondents. We 

reverse, however, the district court's dismissal of the remaining claims 

based on appellant's failure to exhaust his administrative remedies as 

against respondents Feil and Jenkins in their individual capacities and as 

against respondent Nevada Department of Corrections, and we remand 

these claims to the district court for proceedings consistent with this 

order. 

It is so ORDERED. 
cc: Hon. Richard Wagner, District Judge 

Charles Ben Fritsche 

Attorney General/Carson City 

Pershing County Clerk 

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