United States District Court, D. Nevada
GEORGE L. VONTRESS Plaintiff,
STATE OF NEVADA, et al., Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
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.
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.
December 26, 2018, Plaintiff filed the instant Request for
Judicial Clarification, to which no Response has been filed.
ECF No. 38.
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,  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.
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.
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.
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.
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.
14, 2019, Plaintiff filed the instant Declaration of Real,
Imminent Peril. ECF Nos. 94, 95.
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.
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.
Motion to Dismiss
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).
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
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
Motions for Preliminary Injunction / Temporary Restraining
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