Moreno v. Cortez-Masto et al

Filing 83

ORDERED P's # 55 Motion and # 81 Request for reconsideration are DENIED. Signed by Magistrate Judge William G. Cobb on 6/26/2012. (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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JOSEPH MORENO,

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Plaintiff,
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vs.
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CORTEZ-MASTO, et al.,
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Defendants.
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______________________________________
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3:11-cv-00179-ECR-WGC
ORDER

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Before the court is plaintiff’s “Motion Respectfully Requesting Relief for Defendants

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Retaliation.” (Doc. #55.) Plaintiff’s motion was previously addressed at a status conference on

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June 11, 2012. Defendants have now filed an opposition to plaintiff’s motion (Doc. #79), to which

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plaintiff filed a reply (Doc. #81).

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While the defendants’ opposition was technically untimely, the court was able to evaluate the

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substance of plaintiff’s motion (Doc. #55) with the aid of oral arguments at the status conference on

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June 11, 2012 (Doc. #78). As reflected in the Minutes of that conference, the court concluded

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plaintiff’s motion “. . . does not present any claim for which relief can be provided by the Court.”

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(Doc. #78 at 2.)

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Plaintiff’s reply memorandum (Doc. #81) also includes a request “the court reconsider the

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Judgment of (Doc. 78).” (Id. at 1.) There was no “judgment” in “Doc. 78”; rather, Doc. #78 consists

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of the Minutes of Proceedings which addressed, inter alia, plaintiff’s filing entitled “Respectfully

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Requesting Relief for Defendants Retaliation” (Doc. #55). Nevertheless this order will dispose of

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plaintiff’s underlying motion (Doc. #55) as well as plaintiff’s request for reconsideration (Doc. #81).

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Plaintiff’s motion (Doc. #55) was filed after plaintiff’s cell was searched by Nevada

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Department of Corrections (NDOC) officials. What the court discerned from the parties’ filings and

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oral argument was that the Attorney General’s Office apparently served defendants’ answers (or certain

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defendants’ answers) to plaintiff’s discovery which were still in draft format. Later, the Attorney

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General’s Office served final versions which differed in form and content from the initially-served

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draft versions.

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When the deputy attorney general discovered this mistake, he contacted plaintiff to “find out

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what he received, but the plaintiff would not cooperate.” The deputy attorney general then requested

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the warden to search plaintiff’s cell. (Doc. #79 at 2.) Certain discovery documents may have been

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seized by NDOC, but according to plaintiff’s representation at the 6/11/12 status conference, those

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documents have since been returned to him. (Doc. #78 at 2.)

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Although the court has ruled against plaintiff on the “retaliation” issue, the record should

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reflect the court does not condone the procedure the Attorney General’s Office and NDOC employed

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herein to retrieve errantly served documents, i.e., searching plaintiff’s cell and seizing documents from

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him. It seems the better procedure, even in the case of an inmate plaintiff, would have been to have

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made a motion to the court to “claw back” errantly produced documents.1 However, for the reasons

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explained herein, plaintiff has not shown the cell search was motivated by “retaliatory motives” or with

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any intent to intercept plaintiff’s “legal mail.” The court concludes, again, as it did at the June 11

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hearing, that plaintiff’s motion does not present any claim for which relief can be granted.

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Plaintiff relies on Proudfoot v. Williams, 803 F.Supp. 1048 (E.D. PA 1992), for the proposition

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a search of “legal mail” by prison officials “chills” the prisoner’s First and Sixth Amendment rights.

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While the court therein did hold that such a search violated plaintiff’s constitutional rights of access

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to the courts, the court also found the defendants were entitled to qualified immunity. Although the

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prison officials who searched plaintiff’s cell herein apparently did not review plaintiff’s “legal mail,”

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(as in Proudfoot), and although the qualified immunity is not at issue herein, the Court can understand

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The justification presented by defendants, i.e., “. . . to protect potential threats to institutional safety
and security . . .” rings hollow. (Doc. #78 at 2-3.) Defendants fail to explain how draft answers to discovery can
present a security risk.
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that the NDOC officials may not have been able to discern that such a search was likely not a

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legitimate exercise of prison supervisory and administrative powers (the directive to conduct the search

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came from a deputy attorney general). Issues arising from a search of a prisoner’s cell are also

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discussed the Proudfoot decision at page 1054 in the context of “balancing the need for the particular

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search against the invasion of personal rights the search entails.” Proudfoot, supra, at 1054, citing

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Bell v. Wolfish, 441 U.S. 520, 558 (1979).

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Of further interest in Proudfoot was that the District Court rejected plaintiff’s common law

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claims of intentional infliction of emotional distress (and others). The court also found defendants

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acted “without the requisite intent to harm plaintiff . . . .” Proudfoot, supra, at p. 1054. Similarly,

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in the instant matter, even if the deputy attorney general and corrections officers were defendants

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herein, plaintiff’s claim of “retaliation” lacks any evidence of an “intent to harm plaintiff.”

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It is important to note that neither the prison officials who searched his cell nor the deputy

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attorney general who requested the search are defendants in the instant matter, as were the officials in

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Proudfoot. The court expresses no opinion whether this conduct complained of by plaintiff may give

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rise to an independent § 1983 claim. The relief plaintiff seeks for these matters, i.e., “. . . the full

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amount of relief demanded in the complaint” (Doc. #55 at 4) is disproportionate to the actions of

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which plaintiff complains. As was discussed at the aforementioned hearing (Doc. #78 at 2), the

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“. . . plaintiff has secured all documents that were previously provided by the court.” (Id.) He was

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only temporarily deprived of these documents and has not identified any specific prejudice as a result

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of this temporary deprivation. The Court also noted plaintiff “. . . may make comments as to the

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alleged discrepancies found in Exhibit A of plaintiff’s DKT. #77” at the appropriate time. (Id.)

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Therefore, plaintiff’s motion (Doc. #55) and request for reconsideration (Doc. #81) are

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DENIED.

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IT IS SO ORDERED.

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DATED: June 26, 2012.

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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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