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Kevin Lynn Fernandez v. State of Nevada

January 15, 2011

KEVIN LYNN FERNANDEZ, PLAINTIFF,
v.
STATE OF NEVADA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Larry R. Hicks United States District Judge

ORDER

Before the court are plaintiff Kevin Lynn Fernandez's ("Fernandez") various motions including: (1) motion for the court to take judicial notice of facts for trial (Doc. #468*fn1 ); motion for order of facts not in controversy (Doc. #469); motion to reconsider the magistrate's order (Doc. #490); motion to reconsider the court's order (Doc. #498); and motion to reconsider the court's screening order (Doc. #503).

Facts and Procedural History

In 1985, Fernandez was convicted of a single count of sexual assault. He was released on parole in 1992. In 1997, while Fernandez was on parole, the Nevada State Legislature enacted NRS § 213.1214 which eliminates the possibility of parole for a prisoner who is classified as having a high risk to re-offend if the prisoner committed a crime enumerated in the statute.*fn2

Fernandez violated his parole in 2003. In 2006, he went before a psychological review panel to determine whether he presented a high risk to re-offend. The panel labeled Fernandez as an inmate with a high risk to re-offend pursuant to NRS § 213.1214 which consequently precluded him from parole eligibility in 2008.

Fernandez subsequently filed a prisoner civil rights complaint against defendants alleging several causes of action including a procedural Due Process claim for his classification as an inmate possessing a high-risk to re-offend. Doc. #5. Defendants moved for summary judgment which the court granted as to all claims except for Fernandez's procedural due process claim. Doc. #454. Thereafter, Fernandez filed the present motions.

Motion to Take Judicial Notice (Doc. #468)

Fernandez requests the court take judicial notice of three categories of facts for trial: (1) the findings of the court in its previous orders; (2) the language of several Nevada statutes; and (3) certain Nevada Supreme Court opinions. See Doc. #468. The specific factual findings Fernandez requests the court take judicial notice of includes: (1) that on March 1, 2006 he was labeled a high risk sex offender; (2) that being labeled a high risk sex offender has stigmatizing consequences; (3) that being labeled a high risk sex offender made him ineligible for parole; (4) that being labeled a high risk sex offender implicates a liberty interest under the Constitution; (5) that being labeled is a significant hardship to prison life; (6) that he was labeled a high risk sex offender by the Nevada Psychological Review Panel; (7) that he could be labeled a high risk sex offender indefinitely; (8) the language of NRS 213.1214 and AR 813 do not provide an interval for review of a psychological review panel decision; (9) that he was denied parole in 2008; (10) that the label effects the duration of his sentence; and (11) he was entitled to specific due process procedures at the psychological review panel's hearing but that it was denied. Id.

The defendants do not oppose Fernandez's request for judicial notice as to the language of the specific Nevada statutes at issue in this action*fn3 or the Nevada Supreme Court's decision in Stockmeier v. NDOC, 135 P.3d 220 (Nev. 2006), applying the provisions of NRS 241.020 and 241.033 to the psychological review panel. Doc. #481. Further, the defendants do not oppose the court taking judicial notice of its previous orders. Id. However, defendants oppose Fernandez's motion insofar as Fernandez requests the court take judicial notice of his interpretation of the court's factual findings and legal conclusions.

Every court takes judicial notice of its own records in the same action. The Golden Gate v. Marincovich, 286 F. 105, 106 (9th Cir. 1923). However, that notice is limited to the facts and holdings in the record and not an individual parties' interpretations of specific facts or legal conclusions. Id. The majority of Fernandez's proposed facts for trial are interpretations of fact or legal conclusions not found by this court. As such, the court shall not take judicial notice of these requested facts. Accordingly, the court shall deny the motion as to Fernandez's second, third, fourth, fifth, tenth and eleventh proposed judicial facts, and shall grant the motion as it relates to the remaining judicially noticeable facts, statutes, and judicial opinion.

Motion for Order for Facts not in Controversy (Doc. #469)

Fernandez requests an order from the court establishing the remaining issues for trial.

Doc. #469. Fernandez argues that the parties interpretation of the court's report and recommendation granting in-part and denying in-part defendants' motion for summary judgment differs substantially and that an order from the court is needed to clarify its previous order. Fernandez argues that the court did not address his facial substantive due process challenge and, as such, this claim is still an issue for trial.

In opposition, defendants contend that the only issue for trial is whether Fernandez received proper procedural due process at his March 1, 2006 psychological review panel hearing. The defendants' argue that Fernandez no longer has any substantial due process claims left in this action and therefore, his present ...


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