Pratt v. Nevada Board of Parole Commissioners

Filing 36

REPORT AND RECOMMENDATION that the District Judge enter an order DISMISSING this action WITHOUT PREJUDICE; and as a result Defendants' dispositive motion (ECF No. 35 ) should be DENIED AS MOOT. Objections to R&R due by 7/4/2017. Signed by Magistrate Judge William G. Cobb on 6/20/2017. (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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JACOB R. PRATT,

Case No. 3:15-cv-00505-MMD-WGC
Plaintiff,

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REPORT & RECOMMENDATION OF
U.S. MAGISTRATE JUDGE

v.
CHIEF PAROLE AND PROBATION
OFFICER, et al.,

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Defendants.

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This Report and Recommendation is made to the Honorable Miranda M. Du, United

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States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4.

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Plaintiff filed this action against the Chief of Parole and Probation, Connie Bisbee,

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Ed Gray, Jr., Lucille Monterde, and Michael Keeler for constitutional violations related to his

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parole eligibility. (ECF No. 5.) He alleges that the Nevada Board of Parole Commissioners (“the

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Parole Board”) uses guidelines set by the Chief Parole and Probation Officer to establish points

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for a “risk assessment” for the purposes of granting or denying parole. (Id. at 3.) Three of those

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factors are: (1) gender, (2) age at arrest, and (3) current age. (Id.) More points are assigned for

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males and for being younger. (Id. at 4.) He alleges that these guidelines violated his equal

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protection rights and denied him opportunities granted to others because of his gender and age.

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Next, he alleges that the Parole Board wrongfully classified him as a sex offender
without due process, and used this classification to deny him parole. (Id. at 6.)
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Lastly, he alleges that after he filed his initial complaint he saw the Parole Board
(including Gray, Keeler, and Monterde) on October 15, 2015, and asked why he was being
classified as a sex offender. (Id. at 8.) Keeler purportedly told him to take it up with the courts.
(Id.) Plaintiff responded that he had, and Keeler then told him that because a civil action was
pending, they could not discuss parole. (Id.) The Parole Board took no action and did not set a
new parole date. (Id.) Plaintiff alleges this was done in retaliation for filing this action. (Id.)

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On screening, the court allowed Plaintiff to proceed with an equal protection claim based
on the allegations that the Parole Board improperly considered gender in determining whether to
grant or revoke parole. (ECF No. 6 at 5.) Plaintiff was also allowed to proceed with a due
process claim predicated on the allegation that the Parole Board erroneously classified him as a
sex offender and used that classification to deny him parole without allowing him to provide
evidence to dispute the characterization. (Id. at 6.) Finally, he was allowed to proceed with a
retaliation claim against Gray, Keeler, and Monterde, based on the allegation that he told them
he filed a lawsuit and they ended his parole hearing and he has not received another hearing.
(Id.)
Defendants filed a motion to dismiss or alternatively, motion for summary judgment on
January 1, 2017. (ECF No. 16.)
Pursuant to an interstate compact, Plaintiff was subsequently moved to New Mexico.
(See ECF No. 26.)
In three of his pending cases (3:15-cv-00505-MMD-WGC, 3:16-cv-00085-MMD-WGC,
and 3:16-cv-00367-MMD-WGC) Plaintiff filed motions requesting the appointment of counsel
or, alternatively, the dismissal without prejudice of his actions. (See ECF No. 27 in this action.)
The basis for his motion was that he was incarcerated in the Northeast New Mexico Detention
Facility (NNMDF) and had not yet received his property, including his legal property, from
Nevada, and did not then have access to research and case law from Nevada.
While Defendants opposed the request for appointment of counsel (ECF No. 28), they
did not oppose Plaintiff’s request for voluntary dismissal of the action. (ECF No. 29.)

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The court held a consolidated hearing on these motions on March 22, 2017. (See Minutes
at ECF No. 34 in this action.) At the hearing Plaintiff maintained that he could not litigate his
Nevada cases because the law library in New Mexico did not maintain statutes, case law or
decisions from Nevada or the Ninth Circuit. The Deputy Attorney General present at the hearing
represented that he would send Plaintiff a copy of the relevant Nevada statutes, a copy of the
table of contents of the Ninth Circuit’s Section 1983 outline and records relevant to his claims.
Under these circumstances, the court determined that Plaintiff was not entitled to the
appointment of counsel under the applicable standard. The court suggested that in light of this
ruling, and if he wished to proceed, Plaintiff should move to strike his request to dismiss his
action without prejudice, noting that his claims may be barred by the statute of limitations when
he chose to re-file. The court also extended the discovery deadlines, administratively re-filed
Defendants’ pending motion to dismiss/motion for summary judgment and extended the deadline
for Plaintiff’s response.
Defendants’ dispositive motion was re-filed as of March 22, 2017. (ECF No. 35.)
Plaintiff had until April 14, 2017 to file a response. (See ECF No. 34.) Plaintiff never filed a
response or request for an extension of time to respond. Nor did Plaintiff move to strike his
request to dismiss the action without prejudice. In fact, Plaintiff has not filed anything since the
March 22, 2017 hearing.
As a result, Plaintiff’s request for voluntary dismissal is still outstanding. Defendants did
not oppose the request for voluntary dismissal (ECF No. 29); therefore, the court finds that
voluntary dismissal without prejudice is appropriate under Federal Rule of Civil Procedure
41(a)(1)(ii). Alternatively, voluntary dismissal by court order is appropriate under Federal Rule
of Civil Procedure 41(a)(2). Plaintiff is advised to take into account the applicable statute of
limitations in his determination of whether and when to re-file this action.
RECOMMENDATION
IT IS HEREBY RECOMMENDED that the District Judge enter an order
DISMISSING this action WITHOUT PREJUDICE. As a result, Defendants pending

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dispositive motion (ECF No. 35) should be DENIED AS MOOT.1
The parties should be aware of the following:
1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to
this Report and Recommendation within fourteen days of receipt. These objections should be
titled "Objections to Magistrate Judge's Report and Recommendation" and should be
accompanied by points and authorities for consideration by the district judge.
2. That this Report and Recommendation is not an appealable order and that any notice of
appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed
until entry of judgment by the district court.

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DATED: June 20, 2017.

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__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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In 3:16-cv-00085-MMD-WGC, a stipulation for dismissal without prejudice was filed following the March
22, 2017 consolidated hearing, and the stipulation was signed by District Judge Du on April 12, 2017 and the case was
closed. (See 3:16-cv-00085-MMD-WGC, ECF Nos. 24, 25.) The court has concurrently issued a report and
recommendation to grant voluntary dismissal in 3:16-cv-00367-MMD-WGC, where the Defendants similarly did not
oppose Plaintiff’s request to voluntarily dismiss the case.

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