Pasaye v. State of Nevada, ex rel et al

Filing 46

ORDER Granting in part Defendants' 27 Motion for Reconsideration. The injunction issued on 3/22/2019 is DISSOLVED and no longer in effect. Plaintiff's 39 , 40 , and 41 Motions are DENIED. Defendants' 45 Motion for Extension of Time to Respond to the 34 Amended Complaint is GRANTED. Answer deadline: 8/16/2019. Signed by Judge Jennifer A. Dorsey on 7/5/2019. (Copies have been distributed pursuant to the NEF - SLD)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3 Marcos Pasaye,
4

Case No.: 2:17-cv-02574-JAD-VCF

Plaintiff

Order Dissolving Injunction and Resolving
All Other Pending Motions

James Dzurenda, et al.,

[ECF Nos. 27, 39, 40, 41, 45]

v.
5
6
Defendants
7
8

Pro se plaintiff Marcos Pasaye was an inmate at Nevada’s High Desert State Prison when

9 he filed this civil-rights lawsuit challenging the Nevada Department of Corrections (NDOC)
10 administrative regulations that precluded him from participating in Native American ceremonies
11 because he is not of Native American descent nor a tribal member. Pasaye then successfully
12 moved for an injunction directing that he be permitted to participate in the Native American
13 ceremonies at his facility. 1 But the week after I granted that motion, Pasaye was paroled, so
14 defendants move to “reconsider and vacate” the preliminary injunction, arguing that Pasaye’s
15 release has mooted this “case in controversy.” 2 Though Pasaye’s release is a changed condition
16 that has eliminated his need for the injunction, this case is not moot because he also seeks
17 damages for the alleged two-year deprivation of his religious-practice rights. So I dissolve the
18 injunction as moot, but this case proceeds.
19 I.

Motion for reconsideration [ECF No. 27]

20

The March 22, 2019, order granting Pasaye’s motion for preliminary injunction required

21 NDOC and its employees to allow Pasaye to participate in the Native American ceremonies it
22
23

1

ECF No. 25 (order).

2

ECF No. 27.

1 allows for other Native American practitioners, including the sweat lodge, prayer circle, drum
2 circle, smudging, and sacred pipe, and give him access to the Native American grounds. 3
3 Pasaye’s release from HDSP just days later mooted the need for that injunction because he “is no
4 longer subject to the prison conditions [and] policies he challenges,” and this is not a class
5 action. 4
6

Pasaye argues that his case satisfies an exception to the mootness because he faces a

7 lengthy parole and lifetime supervision, “which gives a more likely than not chance that [he] will
8 be reincarcerated and again subject to” the challenged prison policy. 5 But that possibility of
9 reincarceration is too speculative a basis on which to conclude that Pasaye’s claims are capable
10 of repetition because it depends on him violating his parole or supervision conditions. 6 As the
11 Ninth Circuit held in Reimers v. Oregon when considering a similar argument, “we will not
12 apply the repetition doctrine because [the releasee] is able, and indeed is required by law, to
13 prevent this from occurring.” 7 So I dissolve the injunction.
14

But Pasaye’s release did not moot his claims. “It is firmly established that claims for

15 monetary damages survive a prisoner’s release from the officers’ custody.” 8 Because Pasaye
16
17
18
3

19

ECF No. 25.

4

See Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012) (“An inmate’s release from prison
20 while his claims are pending generally will moot any claims for injunctive relief relating to the
prison’s policies unless the suit has been certified as a class action.” (quoting Dilley v. Gunn, 64
21 F.3d 1365, 1368 (9th Cir. 1995)).
5
ECF No. 31 at 4.
22 6
See Alvarez, 667 F.3d at 1065.
23

7

Reimers v. Oregon, 863 F.2d 630, 632 (9th Cir. 1988).

8

Rhodes v. Robinson, 408 F.3d 559, 566 n.8 (9th Cir. 2005)
2

1 seeks damages for civil-rights violations that he claims occurred during his incarceration, a case
2 or controversy remains. 9
3
4

II.

Pasaye’s motion to enforce order, for extension of time, and for contempt
[ECF Nos. 39, 40, 41]

5

On May 3, 2019, the magistrate judge granted Pasaye leave to amend, directed the Clerk

6 of Court to file his first amended complaint, and gave the Nevada Attorney General until May
7 24, 2019, to advise the court whether it could accept service for any of the defendants. 10 The
8 order further stated that any defendant the AG accepts service for must respond to the first
9 amended complaint by July 2, 2019. 11
10

Apparently under the assumption that the defendants failed to do so, Pasaye moves the court

11 to enforce that order, give him additional time to serve the defendants, and to hold the AG in
12 contempt. 12 But Pasaye is mistaken; the AG timely responded by notifying the court on May 24,
13 2019, that it accepts service on behalf of all of the defendants. 13 The AG demonstrates that it
14 mailed Pasaye a copy of that notice, but that mail was returned. 14 Because defendants timely
15 complied with the court’s order and have accepted service on behalf of all of the defendants, 15
16
17
9

See ECF No. 34. Although the defendants used loose language in their motion, stating that
18 “there is no longer an ongoing ‘Case’ or ‘Controversy’ left to be adjudicated in this case,” ECF
No. 27 at 2, they concede in their reply brief that they weren’t seeking dismissal, just an order
19 vacating the injunction. See ECF No. 32.
10

20
21
22

ECF No. 33.

11

Id.

12

ECF Nos. 39–41.

13

ECF No. 36.

14

ECF No. 42-1. Court mail that was sent to Pasaye around the same time was similarly
23 returned, corroborating that claim. ECF No. 38.
15

ECF No. 36.
3

1 Pasaye’s motions to enforce the order and hold defendants in contempt 16 are denied. And
2 because the AG has accepted service on behalf of all of the defendants, Pasaye needs no
3 additional time to serve them, so I deny his motion to extend time to perfect service. 17
4
III.
5

Defendants’ motion to extend time to respond to the amended complaint
[ECF No. 45]

6

Finally, defense counsel timely asks for a 45-day extension of the July 2, 2019,

7 deadline 18 for defendants to respond to the amended complaint. 19 Good cause appearing, I grant
8 that motion. However, I caution defense counsel that workload will not constitute good cause
9 for a second extension of this response deadline.
10

Conclusion

11

Accordingly, IT IS HEREBY ORDERED that the Motion for Reconsideration [ECF No.

12 27] is GRANTED in part: the injunction issued on March 22, 2019, is DISSOLVED and no
13 longer in effect;
14

IT IS FURTHER ORDERED that plaintiffs’ motions to enforce order, extend time for

15 service, and for contempt [ECF Nos. 39, 40, 41] are DENIED;
16

IT IS FURTHER ORDERED that defendants’ motion for extension of the deadline to

17 respond to the amended complaint [ECF No. 45] is GRANTED: the July 2, 2019, deadline to
18 respond to the amended complaint [ECF No. 34] is extended to August 16, 2019.
19

Dated: July 5, 2019
_______________________________
U.S. District Judge Jennifer A. Dorsey

20
21
16

22

ECF Nos. 39, 41.

17

ECF No. 40.

23

18

ECF No. 33.

19

ECF No. 34.
4