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Fernandez v. Mollet

United States District Court, D. Nevada

January 8, 2018

KEVIN FERNANDEZ, Plaintiff,
v.
S. MOLLET, et al., Defendants.

          ORDER Re: ECF, 16

          WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE

         I. BACKGROUND

         Plaintiff is an inmate who is currently in the custody of the New Hampshire Department of Corrections through an interstate compact agreement with Nevada, and is proceeding pro se with this action. He filed his original complaint on June 23, 2016 (ECF No. 1-1), which the court screened (ECF No. 3). The complaint centered around events that allegedly occurred when he was incarcerated within the Nevada Department of Corrections' (NDOC) Ely State Prison (ESP). (ECF No. 1-1 at 1-3.) On screening, the court allowed Plaintiff to proceed with a retaliation claim pursuant to 42 U.S.C. § 1983 against Mollet, Hayman and Herring in Count I. This claim was based on allegations that these defendants searched Plaintiff's cell multiple times, destroyed his legal documents and evidence, and filed a false notice of charges against him because he had previously filed grievances against them as well as a lawsuit against other prison officials. (ECF No. 3 at 5-6.) The court dismissed Count II, which asserted violations of Nevada Revised Statutes (NRS) § § 212.010 and 212.020, because those are criminal statutes which cannot be enforced by civil actions. (ECF No. 3 at 6.) Noting that it was not commenting on the merits of the negligence claim asserted in Count III, the court allowed the claim to proceed against Mollet, Hayman and Herring pursuant to the court's supplemental jurisdiction. There, he alleged that the defendants breached duties described in several administrative regulations and state statutes. (ECF No. 3 at 6.) The court dismissed with prejudice all claims against the State of Nevada, because states are not persons for purposes of 42 U.S.C. § 1983. (ECF No. 3 at 3 n. 2.) The court likewise dismissed NDOC with prejudice because it is an arm of the State, and also not a person for purposes of section 1983. (Id.)

         The parties participated in an early mediation conference on May 30, 2017, but were unsuccessful in resolving the case. (ECF No. 9.) The Attorney General's Office entered a notice of acceptance of serving on behalf of Hayman, Herring, and Mollet, and an answer was filed on August 8, 2017. (ECF Nos. 12, 13.)

         The court entered a scheduling order on August 9, 2017, which required, among other things, that any motion for leave to amend be filed by October 8, 2017. (ECF No. 14 at 2.)

         Plaintiff timely filed his Motion for Leave to Amend and proposed Amended Complaint on September 15, 2017. (ECF Nos. 16, 16-1, errata at ECF No. 17[1].) Plaintiff names Mollet, Herring, Hayman, Lieutenant Bryant[2], the State of Nevada and NDOC, again concerning events that took place at ESP in May of 2015. (ECF No. 16-1 at 2-5.) The proposed Amended Complaint contains two counts, a section 1983 retaliation claim in Count I against Mollet, Herring, Hayman and Bryant (ECF No. 16-1 at 6-8, 10-11), and a State law negligence claim in Count II against Mollet, Herring, Hayman, the State of Nevada and NDOC (ECF No. 16-1 at 12-13).

         In Count I of the proposed Amended Complaint, Plaintiff again alleges that Mollet, Herring and Hayman retaliated against him by searching his cell multiple times, destroying his legal documents and evidence, and filing a false notice of charges against him because he filed grievances against them and a lawsuit against other prison officials. He alleges that Bryant came to his cell to investigate the notice of charges, and told Plaintiff if he wanted, he could plead guilty to a charge of abusive language. Plaintiff claims that Bryant told him that he did not believe the other charges against Plaintiff were true, and that if he contested those charges in a hearing, it would delay his scheduled transfer. Plaintiff claims that he explained to Bryant he was not guilty of any of the charges, but to escape further abuse by the officers, he agreed to plead guilty to the abusive language charge. Bryant accepted the plea, even though he had authority to dismiss the charges he knew were false and retaliatory.

         In Count II, Plaintiff alleges that under Administrative Regulations (ARs) 707 and 339, the State of Nevada, NDOC, and Mollet owed Plaintiff a duty to properly write a disciplinary notice of charges, and violated this duty when they included false information in the charges. (ECF No. 16-1 at 12.) He goes on to aver that under AR 740, Mollet, Hayman, Herring, NDOC and Nevada owed Plaintiff a duty not to retaliate against Plaintiff, search his cell, destroy or deprive him of his property or attempt to injure him in retaliation for his speech. (Id.) He claims they violated this duty. (Id.) As a result, Plaintiff claims he was injured. (Id. at 13.)

         Defendants filed a limited opposition to Plaintiff's motion to amend, indicating they only opposed the amendment to the extent the proposed Amended Complaint reintroduces claims against the State of Nevada and NDOC, who were dismissed on screening of the original Complaint. (ECF No. 18.) Plaintiff filed a reply brief (ECF No. 19), asserting that Nevada and NDOC were dismissed with respect to the federal law claims, but the court did not address them insofar as the State law claims were concerned.

         On October 23, 2017, the court held a hearing to discuss this motion and another motion filed by Plaintiff. (Minutes at ECF No. 23.) At that time, the court ordered Defendants to file and serve a supplemental brief addressing Plaintiff's contention that the State and NDOC are proper defendants in the State law claims asserted in Count II of the proposed Amended Complaint. (Id.) Plaintiff was likewise permitted to file a supplemental reply brief. (Id.)

         Defendants filed their supplemental brief on November 2, 2017. (ECF Nos. 29, 29-1, 29-2.) They argue that the State of Nevada and NDOC are not proper defendants because Count II does not state a claim. They assert that AR 707 is the regulation for the Inmate Disciplinary Process, and AR 339 is the Code of Ethics Employee Conduct Prohibitions and Penalties, and neither create a cause of action or special duty owed to Plaintiff by the State or NDOC. (ECF No. 29 at 2.) They also assert an argument that the criminal allegations cited do not give rise to a civil claim, but that argument is moot as Plaintiff has agreed to strike those allegations from the proposed Amended Complaint.[3]

         Defendants submitted copies of AR 707 (ECF No. 29-1), and AR 339 (ECF No. 29-2) with their supplemental brief. AR 707 contains NDOC's inmate disciplinary process policy. AR 339 contains NDOC's employee code of ethics, conduct prohibitions and penalties. AR 740, not included by Defendants, pertains to NDOC's grievance process, and does provide that inmates shall not be subjected to retaliation for utilizing the grievance procedure.[4]

         Plaintiff filed his supplemental reply on November 27, 2017, where he asserted that Defendants did not file their supplemental brief. (ECF No. 36.) Defendants did file their supplemental brief on November 2, 2017, and the proof of service accompanying the filing indicates that it was served by mail ...


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