Wordlaw v. Neven et al

Filing 28

ORDER Granting 22 Motion to Dismiss. This action is dismissed. Signed by Judge Jennifer A. Dorsey on 3/25/2014. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Frederick Deon Wordlaw,

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Plaintiff,

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Case No.: 2:13-cv-927-JAD-GWF

v.

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Order Granting Defendants’
Unopposed Motion to Dismiss
[Doc. 22]

Dwight Neven, et al.,

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Defendants.

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Plaintiff Frederick Deon Wordlaw, a former inmate at High Desert State Prison, sues

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Defendants Dwight W. Neven, James “Greg” Cox, and Ronald Oliver for conducting an

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allegedly “bogus” disciplinary investigation that led to Wordlaw’s placement in

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administrative segregation and loss of 190 days of statutory good time credit. See Doc. 3 at

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11-14. Although his good time credit was ultimately restored by the Department of

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Corrections, Wordlaw claims to have spent 180 days or more in unlawful confinement due to

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the disciplinary hearing the findings from the “bogus” investigation. See id. Wordlaw

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asserts a First Amendment retaliation claim and a substantive due process claim. See Docs.

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2, 5.

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On December 12, 2013, Defendants moved to dismiss both counts. Doc. 22. They

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argue that (1) Wordlaw failed to exhaust the prison grievance procedures available to him,

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rendering his claims jurisdictionally barred; (2) the two-year statute of limitations expired on

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Wordlaw’s First Amendment retaliation claim five months before he pled it; and (3)
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Wordlaw has not stated a substantive due process claim against the defendants because he

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has not alleged their personal participation and, regardless, these defendants enjoy qualified

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immunity from his claims. Doc. 22.

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Under Local Rule 7-2(b) Wordlaw—who is represented by counsel in this case—had

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14 days to respond to Defendants’ motion. In December, Wordlaw’s counsel filed a

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successful, unopposed motion for an extra 15 days on the representation that he was awaiting

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return of a subpoena to the Nevada Department of Corrections that would produce

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documents needed to properly respond to the motion. Doc. 23 at 2; Doc. 24. On January 13,

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2014, he moved for a second extension, explaining that NDOC had produced documents to

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him pursuant to subpoena but the disclosure came too late for him to draft a proper response

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to the motion to dismiss. Doc. 25 at 2. He asked for an extension of the deadline to February

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12, 2014. Id. Defendants filed a response to this motion, stating that while they did not

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oppose the second continuance, because documents responsive to the subpoena had been

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mailed to Wordlaw’s counsel on December 24, 2013, no further extensions should be

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granted. Doc. 26 at 2. The Court granted Wordlaw’s second request but cautioned that “no

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additional extensions of this deadline will be permitted without a showing of extraordinary

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circumstances.” Doc. 27. Thus, the deadline for Wordlaw’s opposition—if any—to the

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motion to dismiss was set as February 12, 2014. Doc. 27.

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That deadline passed more than 40 days ago without any opposition from Wordlaw.

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Under Local Rule 7-2(d), “[t]he failure of an opposing party to file points and authorities in

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response to any motion shall constitute a consent to the granting of the motion.” Wordlaw’s

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failure to file a response—despite having been granted two extensions of time to permit him

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to do so—constitutes his consent to the granting of the motion. L.R. 7-2(d). Having

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considered the arguments raised in Defendants’ motion and having no benefit of an

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opposition, grants Defendants’ motion to dismiss, and dismisses this action.

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Conclusion

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Accordingly, based upon the foregoing reasons and with good cause appearing and no
reason for delay,
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss [Doc. 22] is
GRANTED; this action is dismissed.
DATED: March 25, 2014.

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_________________________________
JENNIFER A. DORSEY
UNITED STATES DISTRICT JUDGE

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