Kevin Fernandez Vs. State of Nevada, et al.

Filing 703

ORDER granting 661 Motion to Dismiss. This action DISMISSED in its entirety WITH PREJUDICE. All outstanding motions 644 , 645 , 646 , 647 , 649 , 650 , 651 , 654 , 656 , 657 , 658 , 663 , 665 , 687 , and 695 are DENIED as moot. Signed by Judge Larry R. Hicks on 3/8/13. (Copies have been distributed pursuant to the NEF - JC)

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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-WGC
ORDER

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Before the court is defendant the State of Nevada’s motion to dismiss this action with
prejudice pursuant to an enforced settlement agreement. Doc. #661.1
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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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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Refers to the court’s docket number.

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

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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. During the pendency of his action the parties

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reached a settlement agreement in which plaintiff Fernandez agreed to stipulate to dismiss this

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action and the State of Nevada agreed to provide Fernandez with a hearing before the Psychological

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Review Panel. However, after reaching a settlement, Fernandez refused to stipulate to dismissing

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this action.

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Subsequently, the State of Nevada filed a motion to enforce settlement agreement.

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Doc. #577. The Magistrate Judge who oversaw the settlement negotiations and agreement issued a

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report and recommendation granting the motion. Doc. #610. On August 13, 2012, the court adopted

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the report and recommendation enforcing the settlement agreement. Doc. #660. Thereafter, the

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State of Nevada filed the present motion to dismiss this action with prejudice pursuant to the

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court’s order enforcing the settlement agreement and Fernandez’ continued refusal to stipulate to

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dismissal. Doc. #661.

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

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dismissal of this action is warranted in light of the settlement agreement between the parties and the

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court’s order enforcing the settlement agreement. In his opposition, Fernandez opposes the motion

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on the grounds that he has initiated an interlocutory appeal of the court’s order enforcing the

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settlement agreement. Doc. #674. However, Fernandez’ interlocutory appeal is improper until a

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final order of judgment is issued in this matter. Therefore, the court finds that the appropriate action

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in this matter is to grant the motion to dismiss and dismiss this action to allow Fernandez’ appeal to

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proceed without further interruption. Accordingly, the court shall grant the State of Nevada’s

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motion.

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IT IS THEREFORE ORDERED the defendants’ motion to dismiss with prejudice
(Doc. #661) is GRANTED. This action is DISMISSED in its entirety WITH PREJUDICE.
IT IS FURTHER ORDERED that all outstanding motions (Doc. ##644, 645, 646, 647, 649,
650, 651, 654, 656, 657, 658, 663, 665, 687, and 695) are DENIED as moot.

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IT IS SO ORDERED.

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DATED this 8th day of March, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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