Lepley v. State of Nevada et al

Filing 109

ORDER granting 70 Motion to Dismiss; ORDER finding as moot 100 , 108 Objections/Appeals to Magistrate Judge Orders. IT IS FURTHER ORDERED that this case is DISMISSED without prejudice. Signed by Judge Richard F. Boulware, II on 9/29/2020. (Copies have been distributed pursuant to the NEF - cc to P - HAM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Case No. 2:16-cv-02848-RFB-CWH

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BRIAN EUGENE LEPLEY,

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Plaintiff,

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ORDER

v.
STATE OF NEVADA, et al.,

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Defendants.

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I.

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INTRODUCTION
Before the Court is Defendant’s Motion to Dismiss. ECF No. 70. For the reasons below,

the Court grants the motion.

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II.

Plaintiff filed his complaint pursuant to 42 U.S.C. § 1983 against Defendants on December

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PROCEDURAL BACKGROUND

8, 2016. ECF No. 1. On March 4, 2019, the Court issued a screening order dismissing most claims
and allowing part of Count I to proceed against Defendant Dugan to the extent it alleges a
Fourteenth Amendment due process claim based on Plaintiff not being permitted to hear a witness
during his disciplinary hearing. ECF No. 46. Defendant Dugan filed a motion to dismiss on
September 9, 2019. ECF No. 70. Plaintiff filed a Response on September 24, 2019 and Defendant
filed a Reply on October 1, 2019. ECF Nos. 73,74.
III.

FACTUAL ALLEGATIONS

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Plaintiff alleges that during his disciplinary hearing, Sergeant Dugan, who was the

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Disciplinary Hearing Officer, did not permit Lepley to hear his approved witness’ answers to

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Sergeant Dugan’s questions.

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incarcerated individuals be permitted to hear answers to questions at the hearing, Sergeant Dugan

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violated Lepley’s Fourteenth Amendment right to due process when Sergeant Dugan refused to do

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so.

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IV.

Plaintiff alleges that because prison regulations require that

LEGAL STANDARD

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An initial pleading must contain “a short and plain statement of the claim showing that the

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pleader is entitled to relief.” Fed. R. Civ. P. 8(a). The court may dismiss a complaint for failing

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to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In ruling on a motion

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to dismiss, “[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and

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are construed in the light most favorable to the non-moving party.” Faulkner v. ADT Sec. Servs.,

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Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted). In addition, documents filed by a

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plaintiff who is proceeding without counsel (as is the case here) must be liberally construed, and a

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pro se complaint must be “held to less stringent standards than formal pleadings drafted by

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lawyers.” Erickson v. Pardus, 551 U.S. 89 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106

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(1976)) (internal citations and quotation marks omitted); see also Butler v. Long, 752 F.3d 1177,

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1180 (9th Cir. 2014).

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To survive a motion to dismiss, a complaint need not contain “detailed factual allegations,”
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but merely asserting “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
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of action’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
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v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains
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“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face,”
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meaning that the court can reasonably infer “that the defendant is liable for the misconduct
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alleged.” Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). The Ninth Circuit,
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in elaborating on the pleading standard described in Twombly and Iqbal, has held that for a
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complaint to survive dismissal, the plaintiff must allege non-conclusory facts that, together with
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reasonable inferences from those facts, are “plausibly suggestive of a claim entitling the plaintiff
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to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
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V.

DISCUSSION
Defendant argues that Plaintiff is not entitled to hear witnesses in a disciplinary hearing;

therefore, Plaintiff fails to state a basis for his Fourteenth Amendment claim. This Court agrees.

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To state a Fourteenth Amendment due process claim, a plaintiff must adequately allege

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that he was denied a specified liberty interest and that he was deprived of that liberty interest

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without the constitutionally required procedures. Swarthout v. Cooke, 562 U.S. 216, 219 (2011).

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Such interests may arise from the Constitution itself or from state law. When there is such a liberty

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interest or property interest, the only other issue is whether the plaintiff was deprived of that

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interest without the constitutionally required procedures. Id. at 861-63. Under the Fourteenth

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Amendment, no state shall deprive any person of life, liberty, or property without due process of

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law. Incarcerated individuals retain a right to due process, subject to the restrictions imposed by

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the nature of the penal system. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, an

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incarcerated individual in a prison disciplinary hearing is not entitled to the full panoply of due

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process rights that a defendant possesses in a criminal prosecution. Id. at 556. The process due in

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a prison disciplinary hearing includes: (1) written notification of the charges; (2) at least a brief

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period of time after the notice to prepare for the hearing; (3) a written statement by the fact-finders

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as to the evidence relied on and reasons for the disciplinary action; and (4) the inmate facing the

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charges should be allowed to call witnesses and present documentary evidence in his defense when

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permitting him to do so will not be unduly hazardous to institutional safety or correctional goals.

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Id. at 564, 566, 570

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Here, Plaintiffs believes that the Nevada Department of Correction (“NDOC”)

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Administrative Regulation, which governs the disciplinary procedures in Nevada prisons, required

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Sergeant Dugan to allow him to hear his witness’ answers to Sergeant Dugan’s questions.

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Specifically, Plaintiff contends that Dugan should have turned on the telephone or should have

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replaced it if it was broken so Lepley could hear his approved witnesses for the hearing. However,

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Wolff v. McDonnell, does not recognize any “right to see and hear everything the factfinder had

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seen and heard.” Wolf, 418 U.S. at 565. Moreover, according to the Administrative Regulation

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in conducting a disciplinary hearing, the officer “may take testimony of any witness over the

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telephone is said telephone has the capability for all present at the hearing to hear the questions

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and answers.” AR 707.10 (c) (emphasis added). Therefore, there are no requirements imposed on

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hearing officers to use the telephone to permit incarcerated individuals to hear witnesses during a

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disciplinary hearing. Additionally, Plaintiff fails to allege any facts that Sergeant Dugan breached

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any of the due process elements enumerated in Wolff. Plaintiff does not allege that the inadvertent

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incapacity of the facility to allow for him to hear the responses of a witness or witnesses

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undermined or negated his ability to receive the due process afforded him under Wolff.

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Accordingly, this Court finds that Plaintiff’s claim must be dismissed because it does not contain

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sufficient factual matter, even accepted as true, to state a claim to relief that is plausible on its face.

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See Iqbal, 556 U.S. at 678.
VI.

CONCLUSION

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IT IS ORDERED that Defendants’ Motion to Dismiss (ECF No. 70) is GRANTED.

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IT IS FURTHER ORDERED that this case is DISMISSED without prejudice.

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IT IS FURTHER ODERED that Plaintiff’s Objections/Appeals to Magistrate Judge

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Orders (ECF Nos. 100, 108) are DENIED as moot. The clerk is ordered to provide a copy of this

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order to Plaintiff and close this case.

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DATED: September 29, 2020.

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__________________________________
RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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