Turner v. High Desert State Prison et al
Filing
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ORDER Denying 70 Plaintiff's Motion for Issuance of Summons for High Desert State Prison and the Nevada Inmate Bank System. Signed by Magistrate Judge Cam Ferenbach on 9/23/2014. (Copies have been distributed pursuant to the NEF - EDS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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JOHN TURNER,
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Plaintiff,
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vs.
Case No. 2:13–cv–1740–JAD–VCF
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HIGH DESERT STATE PRISON, et al.,
ORDER
Defendants.
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This matter involves incarcerated pro se Plaintiff John Turner’s civil rights action against High
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Desert State Prison, et al. Before the court is Turner’s motion for issuance of summons for High Desert
State Prison and the Nevada Inmate Bank System. (#70). Defendants filed a response. (#72). For the
reasons stated below, Turner’s motion is denied.
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In September 23, 2013, Turner commenced this action under section 1983 against the Nevada
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Department of Corrections, High Desert State Prison, and the Nevada Inmate Bank System, among
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others. The Nevada Department of Corrections appeared and is defending against Turner’s action. To
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date, neither High Desert State Prison nor the Nevada Inmate Bank System have been served because
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both are institutions within the Nevada Department of Corrections. (See Doc. #35, #72); see also Davis
v. High Desert State Prison, No. No. 2:07–cv–1174 JCM (LRL), 2009 WL 210655, at *1 (D. Nev. Jan.
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27, 2009).
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Now, Turner moves to serve High Desert State Prison and the Nevada Inmate Bank System.
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Turner’s motion is denied. Neither High Desert State Prison nor the Nevada Inmate Bank System are
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proper defendants. See id. Both are institutions within the Department of Corrections, which is a
department of the State of Nevada. A state agency is not a “person” subject to suit under section 1983.
Arizonans for Official English v. Arizona, 520 U.S. 43, 68–69 (1997); Will v. Mich. Dep’t of State
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Police, 491 U.S. 58, 65–66, 71 (1989); Hale v. Arizona, 993 F.2d 1387, 1398 (9th Cir. 1993) (en banc).
Further, the Eleventh Amendment bars section 1983 actions against states and their agencies. Hyland
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v. Wonder, 117 F.3d 405, 413 (9th Cir. 1997), amended by 127 F.3d 1135 (9th Cir. 1997); Lucas
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v. Dep’t of Corrections, 66 F.3d 245, 248 (9th Cir. 1995).
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Here, both Defendants that Turner moves to serve are state-controlled and funded; therefore,
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they are considered part of the State shielded by Eleventh Amendment immunity. See Buchwald v. Univ.
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of N.M. Sch. of Med., 159 F.3d 487, 494 n. 3 (10th Cir. 1998) (discussing factors for determining
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whether an entity is an arm of the state for Eleventh Amendment purposes). The State has not waived its
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immunity from suit conferred by the Eleventh Amendment. See NEV. REV. STAT. § 41.031(3).
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ACCORDINGLY, and for good cause shown,
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IT IS ORDERED that Plaintiff John Turner’s Motion for Issuance of Summons for High Desert
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State Prison and the Nevada Inmate Bank System (#70) is DENIED.
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IT IS SO ORDERED.
NOTICE
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Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and
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recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk
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of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal
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may determine that an appeal has been waived due to the failure to file objections within the specified
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time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file
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objections within the specified time and (2) failure to properly address and brief the objectionable issues
waives the right to appeal the District Court's order and/or appeal factual issues from the order of the
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District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch.
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Dist., 708 F.2d 452, 454 (9th Cir. 1983).
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Pursuant to Local Special Rule 2-2, the Plaintiff must immediately file written notification with
the court of any change of address. The notification must include proof of service upon each opposing
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party of the party’s attorney. Failure to comply with this Rule may result in dismissal of the action.
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See LSR 2-2.
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DATED this 23rd day of September, 2014.
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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE
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