Deeds v. Aranas et al

Filing 17

ORDER granting ECF No. 14 Motion to Extend Time (time for service of complaint and summons extended 90 days from date of this order); and denying ECF No. 15 Motion for Reconsideration. Signed by Judge Robert C. Jones on 6/7/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RICHARD DEEDS,

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Plaintiff,
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v.
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ROMEO ARANAS, et al.,
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Defendants.
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___________________________________ )

3:15-cv-00547-RCJ-VPC
ORDER

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I.

DISCUSSION
Plaintiff has submitted a motion to extend time for service of summons and complaint

and a motion for reconsideration. (ECF No. 14, 15).

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A)

Extension of Time

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Plaintiff requests an extension of time to serve the complaint and summons upon

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named defendants in this case. (ECF No. 14). The complaint was filed on January 19, 2016

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(ECF No. 8). Federal Rule of Civil Procedure 4(m) states that if a defendant “is not served

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within 90 days1 after the complaint is filed, the court - on motion or on its own after notice to

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the plaintiff - must dismiss the action without prejudice against that defendant or order that

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service be made within a specified time.” Fed. R. Civ. P. 4(m). Pursuant to Fed. R. Civ. P.

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6(b)(1)(A), the Court may extend the time for service for good cause. See generally Fed. R.

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Civ. P. 6(b)(1)(A) (the court may extend the time in which an act is to be done for good cause).

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Plaintiff asserts that the term is 120 days; however, the 2015 amendment to Federal Rule of Civil
Procedure 4(m) reduced the period for service from 120 days to 90 days. See Committee Notes on Rules - 2015
Amendment on Fed. R. Civ. P. 4.

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The Court finds good cause to extend the time for service in this case. Accordingly, Plaintiff’s

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motion (ECF No. 14) is granted and the time for service of the complaint and summons shall

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be extended 90 days from the date of this order.

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B)

Motion for Reconsideration

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Plaintiff asserts that the Court should reconsider its adjudication of his claims relating

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to the denial of his parole, deprivation of previously prescribed medication, and the degree

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of cold in his cell. (ECF No. 15 at 1, 4-6).

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A motion to reconsider must set forth “some valid reason why the court should

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reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to

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persuade the court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d

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1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented with

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newly discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. Acands,

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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). “A motion for reconsideration is not an avenue to

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re-litigate the same issues and arguments upon which the court already has ruled.” Brown

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v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280, 1288 (D. Nev. 2005).

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1)

Counts III and IV

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In its screening order, the Court dismissed Plaintiff’s Counts III and IV, wherein Plaintiff

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seeks relief for alleged violations of the Ex Post Facto Clause of the Constitution and the Due

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Process Clause of the Fourteenth Amendment. (ECF No. 13 at 12:8-9). Plaintiff asserts that

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the Court made a number of errors in dismissing these claims. Plaintiff alleges that he was

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considered for parole by a three member parole panel which lacked authority to grant him

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parole, that concurrence of the parole board chairman was necessary, that he did not

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previously pursue this claim and lose, that the Supreme Court has held that courts must

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consider relevant parole guidelines and practices, and that ex post facto claims must be

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brought pursuant to 42 U.S.C. 1983. (ECF No. 15 at 2-4).

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As stated in the Court’s initial screening order, the Nevada Supreme Court has ruled

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that Nevada law creates no liberty interest in parole such that due process protections might
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apply. (ECF No. 13 at 7:16-18) (citing State ex rel. Bd. of Parole Comm’rs v. Morrow, 255

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P.3d 224, 227-28 (Nev. 2011) (“[B]ecause Nevada’s parole release statute does not create

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a liberty interest, we reiterate that inmates are not entitled to constitutional due process

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protections with respect to parole release hearings.”)). Plaintiff cites Garner v. Jones, 529

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U.S. 244, 255 (2000) for the proposition that the United States Supreme Court has held that

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the Ex Post Facto Clause requires the Court to consider relevant parole guidelines and

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practices. (ECF No. 15 at 3). Garner specifically addresses Georgia law: “[u]nder George

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law, at all times relevant here, the State’s Board of Pardons and Paroles (Board or Parole

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Board) has been required to consider inmates serving life sentences for parole after seven

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years.” 529 U.S. at 247. Garner also discusses California Department of Corrections v.

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Morales, 514 U.S. 499, 115 S.Ct. 1597 (1995), which concerns California law.

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In his Garner concurrence, Justice Scalia noted that Garner differed from Morales in

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that in Morales, the frequency of parole suitability hearings had been “fixed by law, and a

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legislative change had given California’s Board of Prison Terms discretion to decrease the

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frequency. Here, there has been no such change. Today, as at the time of respondent’s

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offense, the Georgia statute requires only that the Board provide for automatic ‘periodic

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reconsideration.’” 529 U.S. at 257-58. The law of the particular state is relevant. Release on

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parole in the State of Nevada is “an act of grace of the State,” and “it is not intended that the

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establishment of standards relating [to parole] create any such right or interest in liberty or

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property or establish a basis for any cause of action against the State, its political

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subdivisions, agencies, boards, commissions, departments, officers or employees.” NRS

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213.10705. Nevada law creates no liberty interest for parole hearings and is distinguishable

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from the laws of Georgia and California as discussed in Garner and Morales. See also

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Morrow, 255 P.3d at 228; Weakland v. Bd. of Parole Comm’rs, 100 Nev. 218, 220, 678 P.2d

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1158, 1160 (1984); Severance v. Armstrong, 96 Nev. 836, 620 P.2d 369 (1980), opn. on r’hrg,

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97 Nev. 95, 624 P.2d 1004 (1981).

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Plaintiff has no liberty interest in parole such that due process protections might apply.

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Accordingly, Plaintiff’s motion for reconsideration as to Counts III and IV of his complaint is
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denied.

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2)

Deprivation of Previously Prescribed Medication

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In its screening order, the Court dismissed without prejudice Plaintiff’s Eighth

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Amendment deliberate indifference to a serious medical need claim against defendant Dr.

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Michael Koehn for discontinuing some of Plaintiff’s medication. (ECF No. 13 at 12:4-6).

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Plaintiff alleges that defendant Koehn’s actions go beyond negligence and constitute torture.

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(ECF No. 15 at 5). It is unclear whether Plaintiff is now alleging “malice.” In its screening

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order, the Court noted that Plaintiff did not allege malice. (ECF No. 13 at 6:11-13). The Court

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denies this part of Plaintiff’s motion for reconsideration, but emphasizes that the Court

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provided Plaintiff with an opportunity to amend this part of his complaint in its screening order.

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(Id. at 12:4-6).

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3)

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In its screening order, the Court dismissed without prejudice Plaintiff’s Eighth

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Amendment conditions of confinement claim concerning the “painful cold” and bone-chilling

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humidity” in his cell at Ely State Prison. (ECF No. 13 at 8:18-19, 12:10-11). Plaintiff alleges

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that it was cold enough that his skin hurt and that unnecessary pain is proscribed. (ECF No.

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15 at 6). Plaintiff’s allegation is deficient. See Graves v. Arpaio, 623 F.3d 1043, 1049 (9th

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Cir. 2010) (per curiam) (noting the Eighth Amendment requires adequate heating, but not

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necessarily a “comfortable” temperature).

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uncomfortable and not pose a substantial risk of serious harm. As such, the Court denies this

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part of Plaintiff’s motion for reconsideration.

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II.

Cold Cell

A “painful” temperature may simply be

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that Plaintiff’s motion to extend time for

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service of summons and complaint (ECF No. 14) is GRANTED. The time for service of the

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complaint and summons shall be extended 90 days from the date of this order.

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IT IS FURTHER ORDERED that Plaintiff’s motion for reconsideration (ECF No. 15) is
DENIED.
DATED: This 7th day of June, 2016.
DATED: This _____ day of May, 2016.
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_________________________________
United States District Judge

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