Flores v. State of Nevada in rel. The Nevada Department of Corrections et al

Filing 11

ORDER GRANTING P's 4 , 8 Motions to Strike defendant. The State of Nevada in relation to NDOC, and D McDaniel in his official capacity, are DISMISSED from this action. FURTHER ORDERED that D McDaniel's answer/response to the complaint due by 6/14/2011. FURTHER ORD henceforth P shall serve D's counsel w copy of every pleading submitted for consideration, together w a certificate of service. Signed by Judge Howard D. McKibben on 5/24/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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SAMUEL FLORES,

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Petitioner,

Case No. 3:11-CV-00236-HDM-(VPC)
ORDER

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vs.

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STATE OF NEVADA, et al.,

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Respondents.

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Defendants have removed this action from the Seventh

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Judicial District Court of the State of Nevada.

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is plaintiff’s civil rights complaint pursuant to 42 U.S.C. § 1983.

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Plaintiff is a prisoner in the custody of the Nevada Department of

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Corrections.

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U.S.C. § 1915A, and the court will dismiss the State of Nevada in

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relation to the Nevada Department of Correction from this action.

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Before the court

The court has reviewed the complaint pursuant to 28

Plaintiff has sued the State of Nevada in relation to the

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Nevada Department of Correction and Eldon K. McDaniel, warden of

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Ely State Prison, in his individual and official capacities.

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suit against a prison officer in his official capacity is another

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way of suing “an entity of which an officer is an agent.”

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v. Graham, 473 U.S. 159, 165 (1984) the Section 1983 states, in

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relevant part:

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Kentucky

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Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress . . . . (emphasis added)

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“[N]either a State nor its officials acting in their official

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capacities are ‘persons’ under § 1983.”

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State Police, 491 U.S. 58, 71 (1989).

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agencies that are arms of the state, such as the Nevada Department

Will v. Michigan Dept. of
The same rule applies to

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of Corrections.

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F.3d 836 (9th Cir. 1997).

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Nevada and McDaniel in his official capacity.

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plaintiff has filed two motions to strike the State of Nevada and

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the Nevada Department of Corrections from this action (#4, #8), and

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the court will grant these motions.

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Doe v. Lawrence Livermore Nat. Laboratory, 131
The court will dismiss the State of
Furthermore,

Plaintiff claims that he was charged twice in prison

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disciplinary proceedings for only one event of use of intoxicants,

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that no evidence exists to support the second charge, and that

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defendant McDaniel upheld the two sanctions.

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complaint states a claim upon which relief can be granted, and the

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court will direct defendant McDaniel to respond to the complaint.

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That part of the

IT IS THEREFORE ORDERED that plaintiff’s motions to

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strike the State of Nevada and the Nevada Department of Corrections

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from this action (#4, #8) are GRANTED.

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relation to the Nevada Department of Corrections, and defendant

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McDaniel in his official capacity, are DISMISSED from this action.

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The State of Nevada in

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IT IS FURTHER ORDERED that defendant McDaniel shall have

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twenty-one (21) days from the date on which this order is entered

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to file and serve an answer or other response to the complaint.

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IT IS FURTHER ORDERED that henceforth, plaintiff shall

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serve upon defendants or, if appearance has been entered by

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counsel, upon the attorney(s), a copy of every pleading, motion or

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other document submitted for consideration by the court.

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shall include with the original paper submitted for filing a

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certificate stating the date that a true and correct copy of the

Plaintiff

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document was mailed to the defendants or counsel for the

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defendants.

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district judge or magistrate judge which has not been filed with

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the clerk, and any paper received by a district judge, magistrate

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judge or the clerk which fails to include a certificate of service.

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The court may disregard any paper received by a

DATED: May 24, 2011.

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______________________________________
HOWARD D. MCKIBBEN
United States District Judge

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