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

Filing 37

ORDER DENYING plaintiff's 31 Motion for Reconsideration re: 11 Order. Signed by Judge Howard D. McKibben on 12/12/2011. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SAMUEL FLORES,

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Plaintiff,
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vs.
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THE STATE OF NEVADA, in Relation )
to the NEVADA DEPARTMENT OF
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CORRECTIONS, et al.,
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Defendants.
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_________________________________ )

3:11-cv-00236-HDM-VPC

ORDER

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Plaintiff is pro se prisoner Samuel Flores who has filed a
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Section 1983 claim against the State of Nevada in relation to the
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Nevada Department of Correction and Eldon K. McDaniel.

In an order

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dated May 24, 2011, this court dismissed the State of Nevada and
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McDaniel in his official capacity from this action because neither
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can be sued under Section 1983.

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Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) and Doe v.

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Lawrence Livermore Nat. Laboratory, 131 F.3d 836 (9th Cir. 1997).).

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See Docket No. 11 (citing Will v.

On November 2, 2011, plaintiff filed a motion for

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reconsideration (Docket No. 31) of this court's May 24, 2011 order

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(Docket No. 11), in which he asks the court to reconsider the

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portion of its order dismissing McDaniel in his official capacity.

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On November 15, 2011, the defendant opposed plaintiff's motion

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for reconsideration arguing that it fails to comply with Local Rule

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7-2 because it lacks substantive points and authorities, and it is

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without merit because the law is clear that "neither a State nor

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its officials acting in their official capacities are ‘persons'

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under [Section] 1983" and cannot be sued as such.

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35 (citing Kentucky v. Graham, 473 U.S. 159, 165 (1984) and Will v.

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

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See Docket No.

Plaintiff has not filed a reply in support of his motion for
reconsideration and the time to do so has expired.
Local Rule 7–2(d) provides that the "failure of a moving party

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to file points and authorities in support of [a] motion shall

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constitute a consent to the denial of the motion." LR 7-2(d).

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Plaintiff has not complied with LR 7-2.

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Notwithstanding the lack of points and authorities,

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plaintiff's motion for reconsideration should still be denied on

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the merits.

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official capacity was properly dismissed from this action. See Will

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v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989)(State

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officials acting in their official capacities are not "persons"

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under Section 1983 and cannot be sued); Kentucky v. Graham, 473

The law is clear that defendant McDaniel in his

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U.S. 159, 165 (1984)(a suit against a prison officer acting in his

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official capacity is like suing the entity of which the officer is

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an agent).

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(Docket No. 31) is hereby DENIED.

Accordingly, plaintiff's motion for reconsideration

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IT IS SO ORDERED.

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DATED: This 12th day of December, 2011.

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____________________________
UNITED STATES DISTRICT JUDGE

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