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Mack v. Williams

United States District Court, D. Nevada

September 25, 2019

SONJIA MACK, Plaintiff
v.
BRIAN E. WILLIAMS, et al., Defendants

          ORDER (1) DENYING THE PLAINTIFF’S MOTION TO STRIKE AND (2) GRANTING IN PART THE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [ECF NOS. 19, 24]

          ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

         Plaintiff 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.

         The 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.

         The 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.

         Mack 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. Id.

         I deny 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 count three.

         I. BACKGROUND

         On 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 at 7.

         Shortly 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.

         Nevada 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. Id.

         The 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.[1] Mack also told Joshua “I just got to a point . . . I’m [going] to go.

         You 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.

         After 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.

         In his 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.

         II. ANALYSIS

         Summary 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.

         The 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).

         The 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 (2009).

         “A 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. 2003).

         A. ...


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