Friedman v. State Of Nevada et al

Filing 231

ORDERED that P's # 179 Motion for judicial notice is GRANTED in part and DENIED in part. FURTHER ORD that P's # 187 Motion for reconsideration is DENIED. FURTHER ORD that P's # 193 Motion for order that Rs address proof of exhaustio n is DENIED. FURTHER ORD that P's # 203 Motion to compel cooperation is DENIED as moot. FURTHER ORD that Rs' # 202 Motion to strike is DENIED as moot. FURTHER ORD that P's ## 206 , 213 Motions to proceed IFP are DENIED as moot. FU RTHER ORD that P's # 215 Motion for clerk to use correct address is GRANTED. The clerk SHALL modify the docket to reflect Ps correct address: High Desert State Prison, P.O. Box 650, Indian Springs, NV 89070-0650. FURTHER ORD that P's #[216 ] Motion for leave to file discovery motions and motions to expand the record is GRANTED. FURTHER ORD that P's # 218 Motion for adequate law library access is DENIED. FURTHER ORD that P's # 219 motion for extension of time is DENIED as moot. Signed by Judge Larry R. Hicks on 12/27/2011. (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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KENNETH FRIEDMAN,

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Petitioner,

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vs.

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STATE OF NEVADA, et al.,
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Respondents.
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3:07-cv-00338-LRH-VPC
ORDER

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This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which petitioner, a

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state prisoner, is proceeding pro se. Several motions are pending motions before the court, which the

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court addresses in turn.

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I. Motion for Judicial Notice on Law (ECF No. 179)

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Petitioner moves the court to take judicial notice of Nev. Rev. Stat. § 200.575 as it existed in

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2003. Petitioner provides an attached Exhibit A to his motion that he represents is the 2003 version of

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the statute. This motion is granted in part and denied in part. The court takes judicial notice that Nev.

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Rev. Stat. § 200.575 is an existing Nevada statute and that the statute was in effect in 2003. The court

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does not take judicial notice of Exhibit A. Additionally, at this juncture, the court expresses no opinion

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as to the relevance of Nev. Rev. Stat. § 200.575 as codified in 2003 or its application to petitioner’s case.

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II. Motion for Reconsideration of Order Denying Return of Seized Property (ECF No. 187)

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Petitioner argues that the court’s June 29, 2011 order denying the return of his seized property

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contains legal and factual errors. Petitioner contends that the court: (1) failed to address its broad

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remedial authority to order equitable relief; (2) failed to address the exculpatory value of the seized

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property; and (3) did not have the opportunity to consider other bases for granting the motion because

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petitioner filed his supplement to the third amended petition after filing the motion for the return of

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seized property. In his reply, petitioner clarifies that he seeks a “remand” from this court to the state

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court directing the state court to consider his motion for return of seized property timely. Petitioner also

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indicates that the broad remedial authority of this court that he seeks to invoke is found in the All Writs

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Act, 28 U.S.C. § 1651(a).

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Under Fed. R. Civ. P. 60(b) the court may relieve a party from a final judgment or order for the
following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); (3) fraud
(whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse party; (4) the
judgment is void; (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed
or otherwise vacated, or it is no longer equitable that the judgment should
have prospective application; or (6) any other reason justifying relief from
the operation of the judgment.

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Motions to reconsider are generally left to the discretion of the trial court. See Combs v. Nick

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Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987). In order to succeed on a motion to reconsider, a

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party must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior

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decision. See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986),

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aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987). “A motion for

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reconsideration should not be granted, absent highly unusual circumstances, unless the district court is

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presented with newly discovered evidence, committed clear error, or if there is an intervening change

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in the controlling law,” and it “may not be used to raise arguments or present evidence for the first time

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when they could reasonably have been raised earlier in the litigation.” Marlyn Nutraceuticals, Inc. v.

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Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations

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omitted) (emphasis in original).

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First, in its order denying petitioner’s motion for the return of seized property, the court made

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clear that the appropriate venue for petitioner to seek return of this property is state court. If petitioner
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disagrees with the decisions of the state courts, he may appeal to the United States Supreme Court.

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Second, assuming without deciding, for purposes of argument, that this court could order the return of

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certain property if it concluded that it was obtained in violation of the Fourth Amendment, such a

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conclusion has not yet been reached by this court. Petitioner appears to recognize in his papers that he

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has alleged, but has not proved, that his property was obtained by state authorities in violation of the

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Fourth Amendment. In sum, none of the arguments or authority cited by petitioner persuades the court

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that its prior decision was in error. Thus, the court denies petitioner’s motion for reconsideration.

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III. Motion for Order that Respondents Address Proof of Exhaustion (ECF No. 193)

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In this motion, petitioner argues that the court should take notice of his proof of exhaustion and

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order respondents to address the exhaustion of petitioner’s claims and sub-claims. To the extent

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petitioner requests that the court take judicial notice of his legal argument, the court denies the request.

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Additionally, respondents have filed a motion to dismiss in which they argue that several of petitioner’s

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claims are unexhausted. Therefore, petitioner’s request for an order requiring respondents to address

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exhaustion is denied as moot.

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IV. Motion to Compel Cooperation (ECF No. 203) and Motion to Strike Petitioner’s Motion to

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Compel (ECF No. 202)

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Petitioner’s motion to compel cooperation and respondents’ motion to strike pertain to the

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previously court-ordered deposition of Thomas M. Kerr. Before Mr. Kerr’s deposition could be taken,

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his health declined, leading to his hospitalization. Petitioner informs the court that Mr. Kerr has died.

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(ECF No. 217.) Accordingly, these motions are denied as moot.

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V. Motions to Proceed In Forma Pauperis (ECF Nos. 206, 213)

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When petitioner commenced this action, he paid the $5.00 filing fee. Pursuant to 28 U.S.C. §

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1915(a)(1), a court may authorize the commencement of an action, without the prepayment of fees, by

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a person who establishes that he is unable to pay such fees. Petitioner has already paid the $5.00 filing

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fee and has, therefore, established that he is financially able to pay the $5.00 filing fee to commence this

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action. Therefore, petitioner’s motions are denied as moot.

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VI. Motion for Clerks to Use Correct Address (ECF No. 215)

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Petitioner states that mailings from the court have been sent to the incorrect zip code and seeks
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to have his address corrected. Petitioner’s motion is granted. All future documents from the court will

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be sent to the zip code provided by petitioner.

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VII. Motion for Leave to File Motions for Discovery and Expand Record in Support (ECF No.

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216)

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Petitioner requests leave from the court to file motions seeking discovery and motions to expand

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the record in this case. Petitioner asserts that these motions pertain to the merits of his petition as well

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as exhaustion and procedural bar. The court grants petitioner’s motion for leave. Petitioner may file his

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motions for discovery and to expand the record after issuance of this order. If the issues raised by

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petitioner pertain to exhaustion and procedural default, as raised by respondents in their motion to

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dismiss, the court will address them in ruling on the motion to dismiss. If the issues raised by petitioner

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pertain to the merits of his petition, the court will address them prior to conducting its merits review of

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the petition.

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VIII. Motion for Library Access (ECF No. 218)

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Petitioner moves for an order requiring prison officials to allow him adequate law library access,

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research and preparation tools, means of photocopying, and a means of properly mailing his legal mail.

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Petitioner contends that prison officials are arbitrarily removing him from the library and that the method

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by which legal mail is dispatched from prison impedes its timeliness. Specifically, petitioner seeks an

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order concerning library access from this court so that he may respond to respondents motion to dismiss.

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First, to the extent petitioner moves for additional law library access to respond to the motion to dismiss,

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the motion is moot. Petitioner responded to the motion to dismiss on November 30, 2011. (ECF No.

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222.)

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Second, petitioner’s motion, in effect, seeks a mandatory preliminary injunction from this court

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directing prison officials to provide him with a certain level of law library access as described in his

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motion papers. Generally, “[a] prohibitory injunction preserves the status quo. A mandatory injunction

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goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored.”

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Stanley v. University of Southern California, 13 F.3d 1313, 1320 (9th Cir. 1994) (internal quotations,

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citations omitted). A district court should deny a request for a mandatory injunction “unless the facts

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and law clearly favor the moving party.” Id. (citation omitted).
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Prisoners have a constitutional right of access to the courts. See Lewis v. Casey, 518 U.S. 343,

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346 (1996); Bounds v. Smith, 430 U.S. 817, 821 (1977), limited in part on other grounds by Lewis, 518

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U.S. at 354; Ching v. Lewis, 895 F.2d 608, 609 (9th Cir. 1990). This right “requires prison authorities

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to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with

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adequate law libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828;

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see also Madrid v. Gomez, 190 F.3d 990, 995 (9th Cir. 1999). The right, however, “guarantees no

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particular methodology but rather the conferral of a capability – the capability of bringing contemplated

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challenges to sentences or conditions of confinement before the courts . . . . [It is this capability] rather

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than the capability of turning pages in a law library, that is the touchstone” of the right of access to the

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courts. Lewis, 518 U.S. at 356-57. Prison officials may select the best method to ensure that prisoners

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will have the capability to file suit. See id. at 356. Prisons “might replace libraries with some minimal

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access to legal advice and a system of court-provided forms . . . that asked the inmates to provide only

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the facts and not to attempt any legal analysis.” Id. at 352.

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To establish a violation of the right of access to the courts, a prisoner must establish that he or

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she has suffered an actual injury. See Lewis, 518 U.S. at 349; Madrid, 190 F.3d at 996. An “actual

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injury” is “actual prejudice with respect to contemplated or existing litigation, such as the inability to

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meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348 (citation and internal quotations

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omitted); see also Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (explaining that “[f]ailure to

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show that a ‘non-frivolous legal claim ha[s] been frustrated’ is fatal” to a claim for denial of access to

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legal materials) (citing Lewis, 518 U.S. at 353 & n.4); Madrid, 190 F.3d at 996. Delays in providing

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legal materials or assistance that result in actual injury are “not of constitutional significance” if “they

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are the product of prison regulations reasonably related to legitimate penological interests.” Lewis, 518

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U.S. at 362.

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In this case, petitioner fails to show that he has suffered any actual injury. Moreover, petitioner’s

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allegation that his ability to timely respond to respondents’ motions has been stymied by grossly limited

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law library access is belied by the record. Petitioner responded to respondents’ motion to dismiss with

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a ninty-page document within the time allotted and without an extension of time. (ECF No. 222.)

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Therefore, the court denies petitioner’s motion.
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IX. Motion for Extension of Time (ECF No. 219)

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Petitioner moves for a forty-five day extension of time to respond to any motion or answer filed

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by respondents. Petitioner has filed an opposition to respondents’ motion to dismiss. No other motions

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are currently pending before this court requiring a response from petitioner. The court will not enter a

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blanket order extending all future deadlines for petitioner. If a motion requires a response from

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petitioner, he may move for an extension of time based on his then-existing circumstances. Accordingly,

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petitioner’s motion is denied as moot.

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X. Conclusion

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IT IS THEREFORE ORDERED that petitioner’s motion for judicial notice on law (ECF No.
179) is GRANTED in part and DENIED in part.

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IT IS FURTHER ORDERED that petitioner’s motion for reconsideration (ECF No. 187) is
DENIED.

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IT IS FURTHER ORDERED that petitioner’s motion for order that respondents address proof
of exhaustion (ECF No. 193) is DENIED.

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IT IS FURTHER ORDERED that petitioner’s motion to compel cooperation (ECF No. 203)
is DENIED as moot.

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IT IS FURTHER ORDERED that respondents’ motion to strike (ECF No. 202) is DENIED
as moot.
IT IS FURTHER ORDERED that petitioner’s motions to proceed in forma pauperis (ECF Nos.

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206, 213) are DENIED as moot.

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IT IS FURTHER ORDERED that petitioner’s motion for clerk to use correct address (ECF No.

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215) is GRANTED. The clerk SHALL modify the docket to reflect petitioner’s correct address: High

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Desert State Prison, P.O. Box 650, Indian Springs, NV 89070-0650.

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IT IS FURTHER ORDERED that petitioner’s motion for leave to file discovery motions and
motions to expand the record (ECF No. 216) is GRANTED.

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IT IS FURTHER ORDERED that petitioner’s motion for adequate law library access (ECF No.

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218) is DENIED.

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IT IS FURTHER ORDERED that petitioner’s motion for extension of time (ECF No. 219) is
DENIED as moot.
Dated, this 27th day of December, 2011.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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