Kevin Fernandez Vs. State of Nevada, et al.

Filing 559

ORDERED that P's # 504 Motion to stay ; # 530 Motion to reconsider ; and # 538 Motion for leave to file supplemental points and authorities in support of the motion to stay are DENIED. FURTHER ORDERED that P's # 528 Motion for leave to file supplemental points and authorities in support of motion to transport is DENIED as moot. FURTHER ORDERED that P's # 531 Motion to extend time to file pretrial brief is GRANTED. P Kevin Fernandez shall have until 10/7/2011 to file his pretrial brief. Signed by Judge Larry R. Hicks on 9/6/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN LYNN FERNANDEZ,

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Plaintiff,

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v.

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STATE OF NEVADA, et al.,

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Defendants.

3:06-cv-0628-LRH-RAM
ORDER

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Before the court are plaintiff Kevin Lynn Fernandez’s (“Fernandez”) motion to stay the

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execution of the magistrate judge’s order unsealing portions of the record (Doc. #5041); motion for

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leave to file supplemental points and authorities in support of motion to transport (Doc. #528);

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motion to reconsider order denying motion for judicial notice (Doc. #530); motion to extend time

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to file pretrial brief (Doc. #531); and motion for leave to file supplemental points and authorities in

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support of motion to stay the execution of magistrate judge’s order (Doc. #538).

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I.

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Facts and Procedural History
In 1985, Fernandez was convicted of a single count of sexual assault. He was released on

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parole in 1992. In 1997, while Fernandez was on parole, the Nevada State Legislature enacted

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NRS § 213.1214 which eliminates the possibility of parole for a prisoner who is classified as

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Refers to the court’s docket entry number.

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having a high risk to re-offend if the prisoner committed a crime enumerated in the statute.2

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Fernandez violated his parole in 2003. In 2006, he went before a psychological review panel

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to determine whether he presented a high risk to re-offend. The panel labeled Fernandez as an

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inmate with a high risk to re-offend pursuant to NRS § 213.1214 which consequently precluded

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him from parole eligibility in 2008.

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Fernandez subsequently filed a prisoner civil rights complaint against defendants alleging

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several causes of action including a procedural Due Process claim for his classification as an

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inmate possessing a high-risk to re-offend. Doc. #5. Defendants moved for summary judgment

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which the court granted as to all claims except for Fernandez’s procedural due process claim.

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Doc. #454. Thereafter, Fernandez filed the present motions.

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II.

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Motion to Stay (Doc. #504)
Fernandez requests the court stay execution of the magistrate judge’s order unsealing

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portions of the record in this action (Doc. #501) pending any appeal filed at the termination of this

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action. See Doc. #504. The court has reviewed the documents and pleadings on file in this matter

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and finds that Fernandez’s motion is without merit. The magistrate judge issued an appropriate

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order unsealing portions of the record in this action that were initially sealed in error. Accordingly,

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the court shall deny Fernandez’s motion to stay.

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III.

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Motion to File Supplement (Doc. #528)
Fernandez requests leave to file supplemental points and authorities in support of his

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motion for transportation (Doc. #508). See Doc. #528. On January 18, 2011, a full week before

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Fernandez filed the present motion, the court denied his motion for transportation. See Doc. #525.

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Because the underlying order has already been addressed, the court shall deny Fernandez’s motion

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as moot.

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It is uncontested that Fernandez was originally convicted of one of the enumerated offenses.

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IV.

Motion for Reconsideration (Doc. #530)
Fernandez requests the court reconsider its order granting in-part and denying in-part his

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motion to take judicial notice of facts for trial and denying his motion for order of facts not in

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controversy (Doc. #527). See Doc. #530. Initially, Fernandez argues that the court erred in denying

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the motion for order of facts not in controversy because he contends that he still has a viable facial

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substantive due process claim remaining in this action. Second, Fernandez argues that the court

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failed to address one of his proposed facts in his motion to take judicial notice of facts for trial,

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namely “that NRS 213.1214 and AR 813 do not provide offenders appearing before the Psyche

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Panel any Due Process protections prior to being classified as a high risk to re-offend.” Doc. #530.

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The court has reviewed the documents and pleadings on file in this matter and finds that

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reconsideration of the court’s order is not warranted. First, the court notes that the issue of whether

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Fernandez has a substantive due process remaining in this action has been addressed in depth by

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this court on multiple occasions and found to be without merit. See Doc. ##493, 527. Further,

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Fernandez fails to proffer any new evidence or legal authority that was not before the court in its

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previous orders. As such, reconsideration is not warranted. See e.g., Brown v. Kinross Gold, U.S.A.,

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378 F.Supp.2d 1280, 1288 (D. Nev. 2005) (“reconsideration is not an avenue to re-litigate the same

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issues and arguments upon which the court already has ruled.”).

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Second, as to Fernandez’s argument concerning his proposed judicially noticeable fact, the

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court finds that it did address the proposed fact in its previous order. In that order, the court found

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that taking judicial notice of facts “is limited to the facts and holdings in the record and not an

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individual party’s interpretations of specific facts or legal conclusions.” Doc. #527 (citing The

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Golden Gate v. Marincovich, 286 F. 105, 106 (9th Cir. 1923)). Because Fernandez’s proposed

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judicial fact “that NRS 213.1214 and AR 813 do not provide offenders appearing before the Psyche

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Panel any Due Process protections prior to being classified as a high risk to re-offend” is a legal

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conclusion, the court could not and did not take judicial notice of it.

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Motion to Extend Time (Doc. #531)

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Fernandez requests an extension of time to file his pretrial brief in light of ongoing

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settlement negotiations between himself and defendants. See Doc. #531. The court is cognizant of

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the ongoing settlement negotiations. Therefore, the court finds that there is good cause for an

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extension of time to file the pretrial brief for a period of thirty (30) days.

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VI.

Motion to File Supplemental Briefing (Doc. #538)

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Fernandez requests leave to file supplemental points and authorities in support of his

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motion to stay execution of the magistrate’s order (Doc. #504). See Doc. #538. The court has

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reviewed the documents and pleadings on file in this matter and finds that supplemental briefing is

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unnecessary. The court has already determined that the magistrate judge’s order was appropriate.

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Accordingly, the court shall deny Fernandez’s motion to file supplemental briefing.

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IT IS THEREFORE ORDERED that plaintiff’s motion to stay (Doc. #504); motion to

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reconsider (Doc. #530); and motion for leave to file supplemental points and authorities in support

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of the motion to stay (Doc. #538) are DENIED.

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IT IS FURTHER ORDERED that plaintiff’s motion for leave to file supplemental points
and authorities in support of motion to transport (Doc. #528) is DENIED as moot.
IT IS FURTHER ORDERED that plaintiff’s motion to extend time to file pretrial brief

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(Doc. #531) is GRANTED. Plaintiff Kevin Fernandez shall have thirty (30) days after entry of this

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order to file his pretrial brief.

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IT IS SO ORDERED.

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DATED this 6th day of September, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE
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