Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Beraha v. State

United States District Court, D. Nevada

May 8, 2019

ARTHUR BERAHA, Plaintiff,
v.
STATE OF NEVADA, et al, Defendants.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE [1]

         This case involves a civil rights action filed by Plaintiff Arthur Beraha ("Beraha") against Defendants James Dzurenda, William Reubart, William Gittere, Inmate Calling Solutions, LLC ("ICS"), CenturyLink doing business as Embarq Payphone Services, Inc. ("CenturyLink"), Renee Baker, and John Does. Currently pending before the Court is the proposed intervenor's ("Intervenors") joint motion to intervene. (ECF No. 69.) Beraha did not oppose the joint motion, (ECF No. 70), however, Defendants Dzurenda, Reubart, Gittere, and Baker (collectively referred to as the relevant "Defendants") did oppose the joint motion. (ECF No. 71.) The Intervenors replied. (ECF No. 75.) Having thoroughly reviewed the record and papers, the Court hereby recommends the Intervenors' motion to intervene be denied.

         I. BACKGROUND AND PROCEDURAL HISTORY

         A. Procedural History

         Beraha is an inmate in the custody of the Nevada Department of Corrections ("NDOC"), and is currently housed at Ely State Prison ("ESP") in Ely, Nevada. (ECF No. 10.) Proceeding pro se, Beraha filed the instant civil rights action pursuant to 42 U.S.C. § 1983 alleging various claims against Defendants. (Id.)

         Pursuant to 28 U.S.C. § 1915A(a), the Court screened Beraha's amended complaint on June 15, 2018. (ECF No. 12.) Subsequently Beraha fled a motion for partial reconsideration (ECF No. 13), which the Court granted. (ECF No. 15.) The Court determined the following claims stated a cause of action: (1) Coun: I alleging due process claims for property violations and statutory authority against Defendant Dzurenda; (2) Count II alleging free exercise, Religious Land Use and Institutionalized Persons Act ("RLUIPA"), and equal protection violations against Defendants Dzurenda, Gittere, and Reubart[2]; (3) the portions of Count III alleging federal telecommunications violations against Defendants Centurylink and ICS; (4) the portions of Count III alleging state law violations of Nevada's Deceptive Trade Practices Act and Nevada's Revised Statute ("NRS") §§ 41.130 and 41.600 against Defendants Centurylink and ICS; and, (5) Count IV alleging free exercise, RLUIPA, and equal protection violations against Defendants Dzurenda, Gittere, Reubart and Baker. (Id.; see also ECF No. 12.)[3]

         B. Facts Related to Count I

         Prior to July 1, 2015, the Nevada Legislature enacted Nevada Revised Statute ("NRS") § 209.247(5), permitting the NDOC director to withdraw funds from an inmate's account and put money in a savings account for the inmate. (ECF No. 10 at 3-4.) The funds were to be used upon the inmate's release or for expenses related to their funeral costs should they die before release. (Id.) Administrative Regulation ("AR") 258, effective between July 1, 1997, and July 31, 2001, notified inmates the NDOC would deduct $200 from their accounts for the savings account. (Id. at 4.)

         Beraha believed no future deductions would occur under the statute or AR once this amount was obtained. (Id.) However, between June 15, 2015, and July 15, 2015, he discovered Dzurenda had withdrawn additional money from Beraha's personal trust account to put into the savings account. (Id.) On July 19, 2015, Dzurenda implemented a temporary, revised version of AR 258 which increased the savings amount to $400. (Id.) After August 1, 2015, prison officials put a copy of the revised regulations in the ESP law library. (Id.)

         Beraha alleges he had a protectable property interest in the money deposited into his trust account and Dzurenda "arbitrarily, negligently, and/or intentionally" deducted money from his trust account without prior notice in violation of his due process rights. (Id. at 5.) He does not challenge the initial $200 withdrawal, rather, he alleges Dzurenda lacked authority to modify the account. (Id.) Furthermore, he alleges NRS § 209.247(5) does not apply to him because he is a death-sentenced inmate with no reasonable expectation of release. (Id.) Finally, he alleges the statute is unconstitutionally vague in violation of the Fourteenth Amendment. (Id. at 3.)

         C. Proposed Intervenors' Joint Motion to Intervene

         On February 4, 2019, forty-four (44) inmates ("Intervenors") in the custody of the NDOC and housed at ESP in the Condemned Men's Unit ("CMU") filed a motion to intervene. (ECF No. 69.) The Intervenors seek to assert a claim against Dzurenda, contending he lacks statutory authority to apply NRS § 209.247(5) to inmates sentenced to death, and the statute is unconstitutionally vague and overbroad as applied. (Id. at 2.) In the motion, they argue they should be allowed to intervene becaus3: (1) they have several interests implicated in this matter such as preventing the state from depriving them of their money with due process of law and ensuring the NDOC acted within its' statutory grant of authority; (2) their ability to protect their interests will be impaired if they are not permitted to intervene since the outcome of Beraha's case may restrict the Intervenors' ability to bring a later independent action; (3) Beraha's representation of the Intervenors is inadequate since Beraha is proceeding pro se; and, (4) the motion is timely since Defendants Dzurenda, Gittere, and Reubart, only filed their answer (ECF No. 68) on January 28, 2019, and no discovery scheduling order has been entered. (ECF No. 69 at 4-7.)

         Beraha did not oppose the motion to intervene. (ECF No. 70.) However, in response, Defendants did file a motion in opposition arguing leave to intervene is inappropriate because: (1) the Intervenors' interests are adequately represented by the existing parties; (2) the Intervenors retain the ability to bring suit and seek an appropriate remedy regardless of the outcome of Beraha's case and other inmates may be equally impacted by the outcome of Beraha's case, but the Intervenors do not represent them; (3) as a pro se litigant, Beraha cannot represent a class; and, (4) it appears that Beraha is acting as class counsel giving rise to a conflict of interest. (ECF No. 71 at 2-3.)

         In reply, the Intervenors argue: (1) their interest are not being adequately represented; and, (2) their legal work is not being completed by Beraha, however, even if it was, Graham v. Perez, 121 F.Supp. 317 (S.D.N.Y. 2000) does not stand for the contention that inmates are inappropriate class counsel as Defendants assert. (ECF No. 75 at 1-3.)

         II. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.