Hernandez v. Aranas et al

Filing 75

ORDER Granting in part 71 Motion for Judgment on the Pleadings. The Clerk of Court is directed to CLOSE THIS CASE. Signed by Judge Jennifer A. Dorsey on 5/5/2021. (Copies have been distributed pursuant to the NEF - MR) Modified signature and filed date on 5/6/2021 (MR).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 Omar Hernandez,
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Plaintiff

5 v.

Case No.: 2:18-cv-00102-JAD-BNW
Order Granting Unopposed Motion for
Judgment on the Pleadings

6 Romeo Aranas, et al.,
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[ECF No. 71]

Defendant

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Plaintiff Omar Hernandez began this lawsuit as a civil-rights action under 42 U.S.C. §

9 1983 for alleged violations of his constitutional and statutory rights that he claims occurred
10 during his incarceration at Nevada High Desert State Prison (HDSP) and Southern Desert
11 Correctional Center (SDCC). Dismissal orders left Hernandez with only a negligence claim
12 against Warden Brian Williams and Nurse Nonilon Peret. 1 On March 30, 2021, these remaining
13 defendants filed a motion for judgment on the pleadings, asking this court to decline to exercise
14 supplemental jurisdiction over Hernandez’s remaining state-law negligence claim, dismiss this
15 claim as barred by the Eleventh Amendment, or dismiss it because it remains inadequate to state
16 a claim for relief. 2 Hernandez had until April 13, 2021, to file a response to the motion, and he
17 neither filed a response nor moved to extend his time to do so.
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See ECF Nos. 47, 69. This court’s February 4, 2020, order dismissed all claims and gave
Hernandez leave to assert only a negligence claim against Williams and Peret. ECF No. 47.
Though his amended complaint asserts far more than that negligence claim against these two
defendants, see ECF No. 52, any claim beyond the permitted negligence claim is a rogue claim
filed in violation of this court’s very clear and limited order. Plus, a March 3, 2021, order
dismissed the claims against Defendants Aranas, Leeks, and Cox because Hernandez failed to
serve them within the time prescribed by Rule 4(m). See ECF No. 69. So, to the extent that
Hernandez has pled any claim beyond his permitted amended negligence claim, those claims are
hereby struck.
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ECF No. 71.

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This court’s Local Rule 7-2(d) states that “[t]he failure of an opposing party to file points

2 and authorities in response to any motion, except a motion under Fed. R. Civ. P. 56 or a motion
3 for attorney’s fees, constitutes a consent to the granting of the motion.” Because Hernandez
4 failed to file a response to this motion, I apply Local Rule 7-2(d), construe his silence as his
5 consent to granting the motion, and do so.
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IT IS THEREFORE ORDERED that the Motion for Judgment on the Pleadings

7 [ECF No. 71] is GRANTED in part. With a single state-law claim remaining, this court
8 declines to exercise supplemental jurisdiction over that claim and DISMISSES this action
9 under 28 U.S.C. § 1367(c)(3) without prejudice to Hernandez’s ability to refile this claim in
10 state court. If Hernandez desires to pursue his negligence claim against Williams and Peret in
11 state court, he should take heed that 28 U.S.C. § 1367(d) tolls the period of limitations for this
12 claim for just 30 days after dismissal “unless State law provides for a longer tolling period,” and
13 Hernandez alone remains responsible for ensuring the timeliness of any refiling.
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The Clerk of Court is directed to CLOSE THIS CASE.

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Dated: May 5, 2021

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_________________________________
U.S. District Judge Jennifer A. Dorsey

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