United States District Court, D. Nevada
ORDER (1) DENYING THE PLAINTIFF’S MOTION TO
STRIKE AND (2) GRANTING IN PART THE DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT [ECF NOS. 19, 24]
P. GORDON, UNITED STATES DISTRICT JUDGE
Sonjia Mack brought this civil rights lawsuit against
defendants Brian Williams, James Dzurenda, Arthur Emling, and
Mayra Laurian. Mack alleges the defendants deprived her of
her constitutional rights when they detained and strip
searched her without a warrant or her consent and
indefinitely suspended her visiting privileges at High Desert
State Prison (HDSP). Mack asserts the following claims under
42 U.S.C. § 1983.
first three counts are against defendants Emling and Laurian.
Count one alleges a procedural due process violation under
the Fourteenth Amendment and Article 1 § 8 of the Nevada
Constitution. Count two alleges cruel and unusual punishment
in violation of the Fourteenth Amendment and Article 1 §
8 of the Nevada Constitution. Count three alleges an
unreasonable search and seizure in violation of the Fourth
Amendment and Article 1 § 18 of the Nevada Constitution.
final two counts are against defendants Dzurenda and
Williams. Count four alleges a procedural due process
violation under the Fourteenth Amendment and Article 1 §
8 of the Nevada Constitution. Count five alleges an equal
protection violation of the Fourteenth Amendment. The
defendants move for summary judgment on all claims.
moves to strike Exhibit A to the defendants’ reply,
which is a recording of a telephone conversation between Mack
and inmate Karl Joshua. ECF No. 24. She argues the defendants
impermissibly presented new evidence in a reply brief.
Mack’s motion to strike. I grant the defendants’
motion with respect to the federal claim in count one, as
well as the federal and state claims in counts two, four, and
five. I deny the defendants’ motion with respect to the
state claim in count one and the federal and state claims in
February 19, 2017, Mack arrived at HDSP with Tina Cates to
visit their respective boyfriends, Karl Joshua and Daniel
Gonzales. ECF Nos. 1 at 3; 11 at 3. Mack signed a form
consenting to a search of her person, vehicle, or other
property that she brought onto prison grounds. ECF No. 19-1
at 2. While Mack and Cates were in the waiting room, Emling
and Laurian-investigators with the Nevada Inspector
General’s Office-asked Cates to go with them. ECF No.
19-3 at 5, 10. Emling had a warrant to search Cates and her
car for illegal controlled substances. ECF No. 19-5 at 2.
Cates was searched and no contraband was found. ECF No. 21-8
after Emling and Laurian left with Cates, two HDSP
officers-Officer Ronczka and Officer Krohm-approached Mack
and escorted her to an administrative building. ECF No. 19-3
at 5-6. Although the order of the following events is
unclear, the evidence shows that Laurian conducted a strip
search of Mack. ECF No. 19-4 at 6-7. Additionally, Mack spoke
with Emling about (1) whether she had anything illegal on
her, (2) a prior occasion where she paid $300 to an unknown
male on Joshua’s behalf, and (3) whether she had
knowledge of ongoing crimes. ECF Nos. 19-3 at 6; 21-8 at 6.
Emling stated in his response to requests for admissions that
the $300 money exchange was a fact used in procuring the
search warrant against Cates. ECF No. 21-8 at 6. He also
stated that he had reasonable suspicion that Mack was
connected to Cates through the exchange of money.
Id. at 13-14. Mack avers that the money exchange
occurred about six months prior to the day she was searched
and had nothing to do with drugs. ECF No. 21-1 at 4.
Department of Corrections (NDOC) Administrative Regulation
(AR) 422 requires officials to inform a visitor of the type
of search to be performed and the ability to refuse the
search. ECF No. 21-4 at 7. It also requires that a visitor
give written consent to be strip searched unless a search
warrant has been obtained and a peace officer is present.
Id. To conduct a strip search, officers must have
reasonable suspicion that a visitor possesses contraband.
parties disagree as to whether Mack consented to the strip
search. Mack avers she never consented to a strip search and
was never informed that she could refuse or that she was free
to leave at any time. ECF No. 21-1 at 3-4. Emling asserts
Mack was informed that she was free to leave and did not have
to answer any questions. ECF No. 19-3 at 5-6. Laurian asserts
Mack consented to the search because she had already signed
the consent to search form and then she verbally consented to
the strip search. ECF No. 19-4 at 6. In a recorded telephone
conversation Mack had with Joshua after the fact, Joshua
asked her if she complied with Emling and Laurian’s
requests and she said yes and that she “even
volunteered to let them search me.” ECF No. 22-1 at
9:40-9:50. Mack also told Joshua “I just got to
a point . . . I’m [going] to go.
done? I’m going. And I left.” Id. at
20:50-20:58. No. contraband was found on Mack as a result of
the strip search. ECF No. 19-4 at 7.
Mack was strip searched and questioned, she was denied
visiting privileges for the day. ECF No. 19-3 at 9. On
February 22, 2017, Mack received a letter from HDSP stating
her visiting privileges were indefinitely suspended. ECF No.
21-6 at 2. The letter did not provide a reason. Id.
It stated that Mack was “not allowed to return to this
Institution without written request and permission through
the Warden and/or Director.” Id. NDOC policy
requires that written denials of visits “shall clearly
explain the reason for the action, the length of time the
action will apply, the circumstances under which the action
will be reconsidered, and instructions for appealing the
action taken.” ECF No. 21-3 at 16.
response to interrogatories, Williams, who is the Warden at
HDSP, stated that Mack’s visitation rights were
suspended the day she was strip searched because “there
[was] reason to believe she was involved in introducing
contraband into the facility.” ECF No. 19-6 at 6-7. He
also stated that Mack was indefinitely suspended under AR
719, which states that “[t]he Warden has the authority
to restrict or suspend an inmate’s regular visiting
privileges temporarily when there is reasonable suspicion
that the inmate has acted in a way that would indicate a
threat to the good order o[r] security of the
institution.” Id. at 6; see also ECF
No. 21-3 at 3. When asked to admit that Mack was never given
instructions on how to appeal the suspension, Dzurenda, the
director of NDOC, stated that NDOC’s administrative
regulations are available on its website and made available
to all inmates. ECF No. 21-7 at 6-7.
judgment is appropriate if the movant shows “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am.,
Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To
defeat summary judgment, the nonmoving party must produce
evidence of a genuine dispute of material fact that could
satisfy its burden at trial.”). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
doctrine of qualified immunity shields government officials
“from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). In ruling on a qualified immunity defense, I
consider whether the evidence, viewed in the light most
favorable to the plaintiff, shows the defendants’
conduct violated a constitutional right. Sorrels v.
McKee, 290 F.3d 965, 969 (9th Cir. 2002). If so, I then
determine whether the right was clearly established.
Id. I may perform this two-step inquiry in any
order. Pearson v. Callahan, 555 U.S. 223, 236
government official’s conduct violates clearly
established law when, at the time of the challenged conduct,
[t]he contours of [a] right [are] sufficiently clear that
every reasonable official would have understood that what he
is doing violates that right.” Ashcroft v.
al-Kidd, 563 U.S. 731, 741 (2011) (quotation omitted).
The plaintiff need not identify a case “directly on
point, but existing precedent must have placed the statutory
or constitutional question beyond debate.” Id.
I make this second inquiry “in light of the specific
context of the case, not as a broad general
proposition.” Saucier v. Katz, 533 U.S. 194,
201 (2001). “If a genuine issue of material fact exists
that prevents a determination of qualified immunity at
summary judgment, the case must proceed to trial.”
Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir.