Hano v. State of Nevada et al
Filing
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ORDER Granting 196 Motion for Reconsideration to the extent that the Court STAYS the duty to comply with its 194 Order. Signed by Magistrate Judge Elayna J. Youchah on 7/29/2022. (Copies have been distributed pursuant to the NEF - JQC)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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DAVID A. HANO,
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Plaintiff,
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Case No. 2:19-cv-02246-GMN-EJY
ORDER
v.
STATE OF NEVADA, EX REL NEVADA
DEPARTMENT OF CORRECTIONS, et al.,
Defendants.
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Pending before the Court is Defendants’ Motion to Reconsider Magistrate Judge’s Order.
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ECF No 196. The Court has considered the Motion, Plaintiff’s Response (ECF No. 197), and
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Defendants’ Reply. ECF No. 199.
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I.
BACKGROUND
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Plaintiff is an incarcerated person with a heart condition who, among other claims, has
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repeatedly alleged he does not timely receive medication prescribed for his condition. On June 23,
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2022, the undersigned ordered Defendants to file a status report regarding Plaintiff’s Clopidogrel
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prescription. ECF No. 194 at 4. On July 1, 2022, Defendants filed a Motion to Reconsider the Order
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arguing that the Second Amended Complaint (“SAC”), which Defendants contend is the operative
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complaint, makes no mention of Clopidogrel. Defendants argue the Court cannot “grant any relief
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with respect to Clopidogrel.” Defendants cite Woodford v. Ngo for the proposition that inmates are
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required to “exhaust administrative remedies” before they may seek relief in federal court. 548 U.S.
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81, 90-91 (2006).
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Unresolved in this action is Defendants’ previous Objection to Magistrate Judge’s Order
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regarding Plaintiff’s SAC. ECF No. 177. On February 22, 2022, Plaintiff filed a Motion to
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Withdraw the SAC, ECF No. 174, which the Court granted ordering the First Amended Complaint
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(“FAC”) operative. ECF No. 177 at 1. Defendants filed an Objection to the Order on March 8,
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2022. ECF No. 178. Defendants claim that the SAC is the operative complaint for this proceeding.
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Id. at 9. Defendants’ Objection is pending.
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II.
DISCUSSION
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In Woodford, the Supreme Court explained that exhaustion requires complying with a
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prison's “critical procedural rules” that is justified by the need to “impos[e] some orderly structure
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on the course of its proceedings.” 548 U.S. at, 90-91. Where inmates take reasonably appropriate
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steps to exhaust, but are precluded from doing so by a prison’s erroneous failure to process the
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grievance, courts have deemed the exhaustion requirement satisfied. Andres v. Marshall, 867 F.3d
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1076, 1079 (9th Cir. 2017); Sapp v. Kimbrell, 623 F.3d 813, 823 (9th Cir. 2010) (“If prison officials
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screen out an inmate’s appeals for improper reasons, the inmate cannot pursue the necessary
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sequence of appeals, and administrative remedies are therefore plainly unavailable.”). See also
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Fordley v. Lizarraga, 18 F.4th 344, 352 (9th Cir. 2021). Where no administrative relief is available,
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requiring exhaustion contradicts the PLRA’s purpose and it is not required. See Andres, 867 F.3d at
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1079.
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Here, Plaintiff’s FAC alleges he filed a kite for a variety of medications, including
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Clopidogrel, on October 25, 2019. ECF No. 24-1 at 17. He later alleges he filed an emergency
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grievance, informal grievance, first-level grievance, and second-level grievance. Id. According to
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Nevada Department of Corrections Administrative Regulation 740, these appear to be the steps
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required to fully exhaust administrative procedure and therefore, based on the content of the FAC,
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Plaintiff met the burden established in Woodford. 548 U.S. at 90-91. As Defendants contend, this
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burden is not met in the SAC as Plaintiff included the drug among a list of medications not
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administered, but did not indicate any attempts to use administrative procedures to rectify a problem
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with obtaining the drug. ECF No. 117. As such, Plaintiff fails to meet the administrative exhaustion
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requirement. Woodford, 548 U.S. at 90-91. Plaintiff’s Reply to Defendants’ Motion is based upon
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the FAC and does not address the shortcomings in the SAC. ECF No. 197.
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Which of Plaintiff’s Complaints is the operative complaint in this case is an issue that remains
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outstanding.
Thus, the undersigned is not able to determine whether Plaintiff exhausted
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administrative procedures and, thus, whether the Court’s June 23, 2022 Order regarding Clopidogrel
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should be reconsidered. However, the Court notes it has sua sponte power to stay reconsideration
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of its prior order as presented in the instant Motion. The inherent power of the Court to control its
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docket includes the power to do so in the interest of judicial economy. Ali v. Trump, 241 F. Supp.
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3d 1147, 1152 (W.D. Wash., 2017) citing Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936); Clinton
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v. Jones, 520 U.S. 681, 706 (1997) (“The District Court has broad discretion to stay proceedings as
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an incident to its power to control its own docket.”). “Every court has the inherent power to stay
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causes on its docket with a view to avoiding duplicative litigation, inconsistent results, and waste of
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time and effort by itself, the litigants and counsel.” Stern v. United States, 563 F. Supp. 484, 489
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(D. Nev. 1983) (citations omitted).
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The Court finds that determining whether Plaintiff’s FAC or SAC is operative in this matter
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is necessary proceedings before a decision on the Motion for Reconsideration can be issued. Given
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this circumstance, reaching a decision based on the content of either Complaint could lead to an
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erroneous result that will only further complicate this dispute. The best interest of the Court and the
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litigants is served through staying the Court’s Order regarding Clopidogrel (ECF No. 194) until such
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a decision is reached on the pending Objection regarding which is the operative Complaint.
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III.
ORDER
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Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Reconsider Magistrate
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Judge’s Order (ECF No. 196) is GRANTED to the extent that the Court STAYS the duty to comply
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with its Order in ECF No. 194 until such time as there is a ruling on the issue of which of Plaintiff’s
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Complaints is the operative complaint in this matter.
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Dated this 29th day of July, 2022
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ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE
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