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Vontress v. State

United States District Court, D. Nevada

September 27, 2019

GEORGE L. VONTRESS Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          ORDER

          RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

         Before the Court are the following motions: Plaintiff’s Request for Judicial Clarification (ECF No. 38); Plaintiff’s Motion Requesting Emergency Preliminary Injunction / Temporary Restraining Order (ECF Nos. 64, 65); Plaintiff’s Motion to Request to File Exhibit-A Under Seal (ECF No. 66); Plaintiff’s Renewed Request for Emergency Hearing Re: Preliminary Injunction / T.R.O. (ECF No. 76); Plaintiff’s Motion to Declare Dire Urgency and Necessity for Emergency Hearing; Preliminary Injunction / T.R.O (ECF Nos. 83, 84); Defendants’ Motion to Dismiss or, Alternatively, Motion to Transfer Venue (ECF No. 85); Plaintiff’s Motion Requesting Immediate Transfer Back to Nevada, For Good Cause (ECF No. 89); Plaintiff’s Motion to Request Sanctions be Imposed (ECF No. 91); Plaintiff’s Request for Leave to File Judicial Notice on Reverse Side of Facility Forms, Due to Placement in Segregation and Confiscation and Refusal to Return Necessary Legal Materials, Files and Records (ECF Nos. 92); and Plaintiff’s Declaration of Real, Imminent Peril (ECF No. 94).

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (“NDOC”) who until recently was housed at Saguaro Correctional Center (“SCC”) in Eloy, Arizona. Plaintiff filed the Complaint and a motion for leave to proceed in forma pauperis on September 10, 2018. ECF No. 1. Plaintiff simultaneously filed a Request for Emergency Preliminary Injunction / Temporary Restraining Order. ECF Nos. 2, 3. Plaintiff alleged that he was being denied medically-approved braces and an extra mattress as a result of deliberate indifference to his serious medical needs. Id.

         On October 2, 2018, the Court held a hearing and requested that NDOC provide Plaintiff’s medical records. ECF No. 6. The Court continued the hearing to address the motions pending review of the records. NDOC filed under seal Plaintiff’s records on October 11, 2018. ECF Nos. 8, 9.

         On October 19, 2018, the Court held a continued hearing. ECF No. 18. In a written Order issued October 23, 2018, the Court ordered that Plaintiff be provided his knee and ankle braces and a double mattress in compliance with certain requirements. ECF No. 13. However, on the basis of counsel’s representations that SCC Warden Todd Thomas and SCC physician Dr. Hegman intended to provide Plaintiff with braces and a double mattress, the Court deferred ruling on Plaintiff’s motion for injunctive relief.

         On October 30, 2018, Plaintiff filed a Motion Requesting Keep Away Order alleging that SCC staff member Andrew Loza was threatening Plaintiff. ECF No. 15. Defendant CoreCivic entered a special appearance on November 5, 2018 and responded to the motion on November 7, 2018. ECF Nos. 20, 21.

         The Court held a hearing regarding Plaintiff’s Motion Requesting Keep Away Order on November 19, 2018 in Phoenix, Arizona. ECF No. 32. The Court heard testimony from both Plaintiff and Loza. Id. For the reasons stated on the record, the Court denied the motion. ECF No. 33. The Court also confirmed that Plaintiff had been provided with braces and a double mattress and therefore denied the pending Request for Emergency Preliminary Injunction / Temporary Restraining Order as moot. Id.

         On November 21, 2018, the Court issued a Screening Order in this matter. ECF No. 34. The Court deferred decision on the application to proceed in forma pauperis. Id. The Court allowed certain due process, deliberate indifference, supervisory liability, conspiracy, and retaliation claims to proceed. Id. The Court referred the case to the Inmate Early Mediation Program and filed the Complaint. ECF Nos. 34, 35.

         On December 26, 2018, Plaintiff filed the instant Request for Judicial Clarification, to which no Response has been filed. ECF No. 38.

         On February 15, 2019, an Early Mediation Conference was held. ECF No. 47. The parties did not reach a settlement, and the case returned to its normal litigation track. Id. On February 22, 2019, the Court granted the application for leave to proceed in forma pauperis, and summons was issued as to CoreCivic, Fuller, Hininger, [1] Marr, Thomas, and Williams (“CoreCivic Defendants”). ECF No. 50, 51. Defendants Dreeson, Dzurenda, Nevens, and Pena filed their Answer to the Complaint on April 23, 2019. ECF No. 70.

         On April 19, 2019, Plaintiff filed the instant Motion Requesting Emergency Preliminary Injunction / Temporary Restraining Order and Motion to Request to File Exhibit-A Under Seal. ECF Nos. 64, 65, 66. Plaintiff alleged (1) that Defendants have failed to provide his legal materials in compliance with the Court’s November 19, 2018 order and (2) that Defendants have refused to allow Plaintiff to send certain mail as “legal mail.” Id. CoreCivic Defendants filed a Response on May 3, 2019. ECF No. 72. On May 7, 2019, Plaintiff filed the instant Renewed Request for Emergency Hearing Re: Preliminary Injunction / T.R.O. ECF No. 76.

         On June 3, 2019, Plaintiff filed the instant Motion to Declare Dire Urgency and Necessity for Emergency Hearing; Preliminary Injunction / T.R.O. ECF Nos. 83, 84. CoreCivic Defendants filed a Response on June 10, 2019. ECF No. 93.

         On June 3, 2019, CoreCivic Defendants filed the instant Motion to Dismiss or, Alternatively, Motion to Transfer Venue, as well as a Motion to Stay Discovery Pending Resolution of Motion to Dismiss. ECF Nos. 85, 86. Defendants argue (1) that the Court lacks personal jurisdiction as Plaintiff fails to allege that CoreCivic purposely direct any activities toward Nevada and (2) that venue is improper because the events giving rise to Plaintiff’s claims occurred in Arizona. Plaintiff filed a Response on June 14, 2019. ECF No. 96. CoreCivic Defendants filed a Reply on June 21, 2019. ECF No. 103.

         On June 7, 2019, Plaintiff filed the instant Motion Requesting Immediate Transfer Back to Nevada, For Good Cause; Motion to Request Sanctions be Imposed; and Request for Leave to File Judicial Notice on Reverse Side of Facility Forms, Due to Placement in Segregation and Confiscation and Refusal to Return Necessary Legal Materials, Files and Records. ECF Nos. 89, 91, 92. On June 21, 2019, Dreeson, Dzurenda, Nevens, and Pena filed Responses to the Motion Requesting Immediate Transfer and to the Motion for Sanctions. ECF Nos. 99, 100.

         On June 14, 2019, Plaintiff filed the instant Declaration of Real, Imminent Peril. ECF Nos. 94, 95.

         On June 17, 2019, the Court issued an Order granting CoreCivic Defendants’ Motion to Stay Discovery Pending Resolution of Motion to Dismiss. ECF No. 97. To undergo a jurisdictional analysis, the Court ordered that CoreCivic file (1) a copy of its contract governing the detention of Nevada Department of Corrections inmates and (2) any bid submitted to obtain the contract or any proposal submitted to expand existing services to include the contracted services. Id. CoreCivic Defendants attached this information to their Reply filed June 21, 2019. ECF No. 103.

         On August 19, 2019, the Court received notice that Plaintiff has been relocated to High Desert State Prison in Indian Springs, Nevada. The Court held a status conference to confirm this fact on August 22, 2019. It was represented to this Court that Defendant Hininger is located in Tennessee, that Defendant Marr is located in Texas, and that Defendants Fuller, Thomas, and Williams are located in Arizona.

         II. LEGAL STANDARDS

         a. Motion to Dismiss

          In order to state a claim upon which relief can be granted, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). In ruling on a motion to dismiss for failure to state a claim, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Security Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013). To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, ” meaning that the court can reasonably infer “that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

         A plaintiff bears the burden of establishing personal jurisdiction. Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163, 1168 (9th Cir. 2006). To establish that personal jurisdiction over a defendant is proper, a plaintiff must show (1) that the forum state's long-arm statute confers personal jurisdiction and (2) that the exercise of jurisdiction comports with the constitutional principles of due process. Rio Properties, Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir.2002). Because N.R.S. § 14.065 permits Nevada courts to exercise jurisdiction to the same extent as the Constitution, this Court need only consider the constitutional principles of due process. Walden v. Fiore, 134 S.Ct. 1115, 1121 (2014).

         In a civil action, venue is only proper in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28 U.S.C. § 1391(b). A district court has the authority to dismiss an action if commenced in the improper venue, or to transfer it to any other district where it might have been brought. 28 U.S.C. § 1404(a); 28 U.S.C. § 1406(a). The decision whether to transfer a case is within the discretion of the district court and is made under “an individualized, case-by-case consideration of convenience and fairness.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). A court analyzing a motion to dismiss for improper venue may take into consideration facts outside the pleadings. See Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996) (analyzing a motion to dismiss for improper venue involving a forum selection clause).

         b. Motions for Preliminary Injunction / Temporary Restraining Orders

         The analysis for a temporary restraining order is “substantially identical” to that of a preliminary injunction. Stuhlbarg Intern. Sales Co, Inc. v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). To obtain a preliminary injunction, a plaintiff must establish four elements: “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that the public interest favors an injunction.” Wells Fargo & Co. v. ABD Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th Cir. 2014), as amended (Mar. 11, 2014) (citing Winter, 555 U.S. 7, 20 (2008)). A preliminary injunction may also issue under the “serious questions” test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134 (9th Cir. 2011) (affirming the continued viability of this doctrine post-Winter). According to this test, a plaintiff can obtain a preliminary injunction by demonstrating “that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor, ” in addition to the other Winter elements. Id. at 1134–35 (citation omitted).

         III. ...


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