Gibbs v. Fey et al

Filing 28

ORDER re 26 Motion to Compel. IT IS ORDERED that the Nevada Attorney Generals Office may file a response to the motion, no later than 9/28/17. The Clerk's Office is INSTRUCTED to serve a copy of this order on Deputy Attorney General Tiffany Breinig. Signed by Magistrate Judge Nancy J. Koppe on 9/14/17. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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LARRY GIBBS, JR.,
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Plaintiff(s),
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vs.
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DR. MARIA FEY, et al.,
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Defendant(s).
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__________________________________________)

Case No. 2:15-cv-01958-GMN-NJK
ORDER

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Pending before the Court is Plaintiff’s motion for an order allowing service on the Nevada

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Department of Corrections with respect to his claim against Defendant Ziemann. Docket No. 26. Plaintiff

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argues that he has sued Defendant Ziemann in his official capacity and, as such, he has essentially sued the

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Nevada Department of Corrections. See id. at 3.1 The Court finds it in the interest of justice to receive a

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response from the state on this issue. Accordingly, the Nevada Attorney General’s Office may file a

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response to the motion, no later than September 28, 2017, indicating (1) whether it will accept service with

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respect to Plaintiff’s official capacity claim against Defendant Ziemann and, if not, (2) why the Court

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should deny Plaintiff’s request to allow service on the Nevada Department of Corrections. To the extent

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such response is not filed, the Court will assume the state does not object to service as requested.

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Plaintiff’s complaint identifies the claim against Defendant Ziemann as both in his individual and
official capacities, and seeks both damages and prospective injunctive relief. See Docket No. 1-1 at 3, 14.
A civil rights plaintiff may not recover damages against a defendant in his official capacity, but may obtain
prospective injunctive relief. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 64-66, 71 n.10 (1989).

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The Clerk’s Office is INSTRUCTED to serve a copy of this order on Deputy Attorney General
Tiffany Breinig.

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IT IS SO ORDERED.

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Dated: September 14, 2017

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________________________________________
NANCY J. KOPPE
UNITED STATES MAGISTRATE JUDGE

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