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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 LARRY GIBBS, JR., 11 12 13 14 15 ) ) Plaintiff(s), ) ) vs. ) ) DR. MARIA FEY, et al., ) ) Defendant(s). ) __________________________________________) Case No. 2:15-cv-01958-GMN-NJK ORDER 16 Pending before the Court is Plaintiff’s motion for an order allowing service on the Nevada 17 Department of Corrections with respect to his claim against Defendant Ziemann. Docket No. 26. Plaintiff 18 argues that he has sued Defendant Ziemann in his official capacity and, as such, he has essentially sued the 19 Nevada Department of Corrections. See id. at 3.1 The Court finds it in the interest of justice to receive a 20 response from the state on this issue. Accordingly, the Nevada Attorney General’s Office may file a 21 response to the motion, no later than September 28, 2017, indicating (1) whether it will accept service with 22 respect to Plaintiff’s official capacity claim against Defendant Ziemann and, if not, (2) why the Court 23 should deny Plaintiff’s request to allow service on the Nevada Department of Corrections. To the extent 24 such response is not filed, the Court will assume the state does not object to service as requested. 25 26 27 28 1 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). 1 2 The Clerk’s Office is INSTRUCTED to serve a copy of this order on Deputy Attorney General Tiffany Breinig. 3 IT IS SO ORDERED. 4 Dated: September 14, 2017 5 6 ________________________________________ NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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