Lepley v. State of Nevada et al

Filing 119

ORDER Re: 117 Ninth Circuit Court of Appeal's Referral Notice. IT IS ORDERED that Plaintiff's in forma pauperis status shall continue through his appeal as his appeal is not frivolous. Signed by Judge Richard F. Boulware, II on 10/15/2020. (Copies have been distributed pursuant to the NEF - HAM)

Download PDF
Case 2:16-cv-02848-RFB-DJA Document 119 Filed 10/15/20 Page 1 of 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 BRIAN EUGENE LEPLEY, 8 9 Case No. 2:16-cv-02848-RFB-DJA Plaintiff, ORDER v. 10 STATE OF NEVADA, et al., 11 Defendants. 12 13 This matter comes before the Court on the Ninth Circuit Court of Appeal’s Referral Notice. 14 ECF No. 117. The Ninth Circuit refers the matter to the Court for the limited purpose of 15 determining if Plaintiff’s in forma pauperis status should continue during his appeal or if Plaintiff’s 16 appeal is frivolous or is taken in bad faith. Id. 17 “[A]n appeal on a matter of law is frivolous where none of the legal points are arguable on 18 their merits.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). Here, the Court dismissed Plaintiff’s 19 Complaint on the bases that Plaintiff has no Fourteenth Amendment due process right to hear 20 witnesses at his disciplinary hearing. see Wolff v. McDonnell, 418 U.S. 539, 556 (1974)(finding 21 that incarcerated individuals do not have a full panoply of due process rights; instead due process 22 in disciplinary hearings includes: (1) written notification of the charges; (2) at least a brief period 23 of time after the notice to prepare for the hearing; (3) a written statement by the fact-finders as to 24 the evidence relied on and reasons for the disciplinary action; and (4) the inmate facing the charges 25 should be allowed to call witnesses and present documentary evidence in his defense when 26 permitting him to do so will not be unduly hazardous to institutional safety or correctional goals). 27 Because Plaintiff failed to allege any facts demonstrating a violation of the enumerated due process 28 elements of Wolff this Court granted Defendants’ Motion to Dismiss. Case 2:16-cv-02848-RFB-DJA Document 119 Filed 10/15/20 Page 2 of 2 1 However, the Court does find that it could plausibly argued that the right to call witnesses 2 may in some cases involve the right to hear such witnesses. The Court did not find such to be the 3 case here, but the Court recognizes the arguable possibility. The Court defers to the appellate court 4 as to this possible interpretation of Wolff. The Court thus finds that the appeal is not frivolous. 5 6 IT IS THEREFORE ORDERED that Plaintiff’s in forma pauperis status shall continue through his appeal as his appeal is not frivolous. 7 8 DATED: October 15, 2020. 9 __________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?