Tagle v. State of Nevada et al

Filing 151

ORDER DENYING ECF No. 121 Motion for copies. Signed by Magistrate Judge William G. Cobb on 9/27/2017. (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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VICTOR TAGLE, SR.,
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Plaintiff,
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vs.
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STATE OF NEVADA, et al.,
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Defendants.
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______________________________________)

3:16-cv-00148-MMD-WGC
ORDER
Re: ECF No. 121

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Before the court is Plaintiff’s August 24, 2017 filing which seeks (1) copies of all of the civil
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complaints which Plaintiff has filed, and (2) dismissal of Magistrate Judge William G. Cobb as the
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assigned Magistrate Judge to this case (and various other relief as against Deputies Attorney General
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Hardcastle and Albright). (ECF Nos. 121, 122.)
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Because the court’s Local Rules restrict a motion or other filing to one distinct topic, LR IC 219
2(b), the court clerk lodged Plaintiff’s motion for copies as ECF No. 121. The component of Plaintiff’s
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motion seeking the dismissal of Magistrate Judge William G. Cobb (and certain other relief as against
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the Attorney General’s Office) has been lodged as ECF No. 122.
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Defendant Rowley opposed Plaintiff’s motion in his combined response to ECF Nos. 121 and
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122 (ECF No. 143). Plaintiff requested an extension of time to reply to Defendant’s opposition
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(ECF No. 146), which the court granted. (ECF No. 147.)

Plaintiff filed a combined reply to

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Defendant’s opposition (ECF No. 150).
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This order pertains to Plaintiff’s request for copies of the complaints in twenty-seven (27) cases
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Plaintiff has filed and/or has pending in the United States District Court (ECF No. 121 at p. 5.) The court
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will address the issues in ECF No. 122 in a separate order.

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BACKGROUND

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Plaintiff is an inmate in the custody of the Nevada Department of Corrections. He commenced

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a civil rights action for events that took place while Plaintiff was incarcerated at the Ely State Prison

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(ESP). In screening Plaintiff’s complaint, District Judge Miranda M. Du allowed a claim for alleged

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excessive force to proceed against a single defendant, ESP custodial officer C. Rowly1. District Judge

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Du dismissed the other Defendants Plaintiff had sued.2

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In ECF No. 121 at 3, Plaintiff contends the undersigned either ordered or somehow orchestrated

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in concert with one or more Deputies Attorney General the confiscation of some or all of his litigation

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files while he was housed at Lovelock Correctional Center (LCC).3 As such, he seeks duplication at

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court expense copies of the complaints he has filed in twenty-seven (27) civil actions in the U.S. District

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Court for the District of Nevada.

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DISCUSSION

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The record in the now extensive docket reflects this court addressed the matter of NDOC alleged

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confiscation of his legal documents at a hearing on June 19, 2017, regarding ECF No. 55, Plaintiff’s

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Motion for Evidentiary Hearing, the subject of which related to LCC’s removal of a number of legal

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storage boxes from his cell. The issue first arose, however, when Plaintiff filed a “Motion for Court

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Intervention” (ECF No. 40) wherein he contended, inter alia, that NDOC under the alleged direction of

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the Attorney General’s Office, through Lt. Olivas, confiscated Plaintiff’s legal documents. The

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Defendant’s responsive memorandum (ECF No. 49) to Plaintiff’s motion for court intervention

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represented the scenario of events regarding the confiscation of certain of his multiple boxes in his cell

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Custodial Officer Rowly’s name and spelling has subsequently been corrected to appear as “Corey
Rowley.” See ECF No. 19, Defendant’s Notice of Acceptance of Service.
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Plaintiff’s motion also asserts that Magistrate Judge Cobb “improperly dismissed” named Defendants

McDaniel, Baker, Caldwell and State of Nevada from this lawsuit. (ECF No. 121 at 2-5.) This court has
previously addressed this contention in its order of August 28, 2017, advising Plaintiff that these Defendants
were dismissed by District Judge Du in the screening order, not by the undersigned. (ECF No. 125.)
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Plaintiff is currently housed at High Desert State Prison.
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at LCC, as follows4:

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“... Lt. Olivas denies that she confiscated Mr. Tagle’s legal documents
and placed him in segregation to retaliate against him, and she denies that
she threatened to destroy his legal documents. See Exhibit B: Declaration
of Lieutenant Valaree Olivas. [Deceased Clark County Discovery
Commissioner Chris] Beecroft obviously could not retaliate or direct
retaliation against Plaintiff, because Mr. Beecroft passed away on
December 26. 2016. See Exhibit C: Obituary of Chris Beecroft Jr.
(footnote omitted.)5 Defendant cannot make any representations regarding
unnamed Deputies Attorney General or an unnamed NDOC guard, but
the facts of this issue demonstrate that Plaintiff is not a victim of
retaliation.

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B. Plaintiff blatantly misrepresents the confiscation of his legal
documents.

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NDOC Administrative Regulation (“AR”) 722.04(13)(E) restricts an
inmate to three legal boxes in his cell. See attached Exhibit F: AR 722.
When an inmate has excess personal property, such as boxes of legal
documents, AR 711.01(4)(C) and 711.01(4)(D)(5) direct NDOC officials
to confiscate the property. See attached Exhibit G: AR 711. AR
711.01(4)(C) also directs NDOC officials to confiscate the excess
personal property of an inmate placed in restrictive custody. When an
inmate’s personal property is confiscated, NDOC staff makes an
inventory of the property and securely stores the property. AR
711.01(4)(D)(2).

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Here, Plaintiff had five legal boxes, a fact he concedes in his request.
ECF No. 40 at 1. This exceeds the number of legal boxes he may possess
in his cell. AR 722.04(13)(E). On April 13, 2017, Officer J. Gouveia
informed Plaintiff that he exceeded the number of legal boxes allowed
and told him to remove two of the five boxes. See Exhibit D. The next
day, Lt. Olivas discussed this issue with Plaintiff. See Exhibit B. She told
him that he could only have three boxes in his cell and that his extra
boxes would be stored, not destroyed. Id. Plaintiff next discussed this

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Before the filing of Defendant’s memorandum (ECF No. 49), this court denied Plaintiff’s motion
(ECF No. 40), advising Plaintiff the court was not authorized to intervene in the daily operations of the Nevada
Department of Corrections and that Plaintiff’s recourse was to follow NDOC’s grievance procedures and/or
consider filing a new action if the issues are not resolved via grievances. (ECF No. 41.) Although Defendant’s
memorandum was filed after the court’s order was entered, because it is explanatory of the alleged confiscation
contention, the court sets forth excerpts of Defendant’s memorandum (ECF No. 49) in this order.
The exhibits referred to in the excerpted portions of Defendant’s memorandum are not duplicated in this
order but may be found in the docket at ECF No. 49-1 through 49-7.
The court will also at this juncture point out that Plaintiff’s motions (ECF Nos. 40 and 55) did not in any
fashion pertain to ESP Custodial Officer - and sole Defendant - C. Rowley. See, ECF No. 98.
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Plaintiff’s confiscation argument also asserted that former Clark County Discovery Commissioner Chris
Beecroft, who passed away several months before the LCC contention of excessive file boxes were being stored
in Plaintiff’s cell, was also somehow involved in the conspiracy.
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issue with Pamela Feil, the law library supervisor, on April 17, 2017. See
Exhibit E. Ms. Feil also told him that he is allowed a maximum of three
boxes and that his extra boxes would be stored, not destroyed. Id. On
April 19, 2017, Lt. Olivas ordered Plaintiff to remove two of his legal boxes
so that the boxes could be stored in legal storage. Id. Plaintiff refused to
comply with Lt. Olivas’s direct order, and Plaintiff said that he would “go
to the hole.” Id.

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Plaintiff claims that he did as he was told, ECF No. 40, but his claim is
unambiguously false and he has misrepresented the facts of this issue to the
Court.

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C. Plaintiff’s request does not warrant any relief.

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As this Court can plainly see, Plaintiff’s pleading blatantly misrepresents the
confiscation of his legal documents. Plaintiff’s documents were confiscated
because he had more boxes than the ARs allow and because he was placed
in segregation—not because Mr. Beecroft, Ms. Hardcastle, Lt. Olivas,
Officer Hoffman, an unnamed Deputy Attorney General, or an unnamed
NDOC guard retaliated against him. Furthermore, Plaintiff was very
specifically informed that the ARs and housing rules permit him to have no
more than three boxes of legal documents in his cell and that the extra boxes
would be placed in storage—not destroyed.

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Moreover, LCC Associate Warden William Sandie informed counsel that
Plaintiff reviewed his legal documents and voluntarily reduced his number
of boxes from five to one. Warden Sandie also confirmed that Plaintiff’s
remaining documents are in storage in the LCC law library and that Plaintiff
has been returned to general population. See Exhibit A – Declaration of
Gerri Lynn Hardcastle.

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Because the evidence Defendant presents unmistakably demonstrates that
(1) Plaintiff has misrepresented the confiscation of his legal documents in
his pleading before the Court, (2) LCC staff never threatened to destroy his
legal documents, (3) Plaintiff was placed in administrative segregation due
to his failure to comply with the ARs, housing rules, and a direct order from
Lt. Olivas, and (4) Mr. Beecroft, Ms. Hardcastle, Lt. Olivas,
Officer Hoffman, an unnamed Deputy Attorney General, and an unnamed
NDOC guard are not retaliating against Plaintiff, Plaintiff is not entitled to
the relief he requests .”

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On May 9, 2017, Plaintiff renewed his contention that his legal documents were being illegally
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confiscated in a “Motion for Evidentiary Hearing.” (ECF No. 55.) The Defendant again responded to
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Plaintiff’s accusations. (ECF No. 71.) On May 25, 2017, this court scheduled a hearing to be conducted
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on June 19, 2017, regarding numerous motions filed by Plaintiff, including ECF No. 55 with respect to
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Plaintiff’s contentions about the alleged confiscation of his legal storage boxes. After hearing Plaintiff’s
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extensive exhortations regarding the alleged seizure of his files (see Transcript, ECF No. 99), the court
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denied the relief sought concerning the alleged destruction of Plaintiff’s files, stating in its Minutes as
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follows:

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The court next addresses Plaintiff’s motion for an evidentiary hearing
(ECF No. 55). Mr. Tagle contends NDOC correctional officers have
illegally removed legal storage boxes from his cell and have allegedly
destroyed the documents contained within them. DAG Hardcastle reports
that pursuant to NDOC Administrative Regulations, an inmate may only
have up to three legal boxes in his cell. Correctional officers explained to
Mr. Tagle that he would need to consolidate his five to six legal boxes to
three legal boxes. DAG Hardcastle represents Mr. Tagle at first refused
to consolidate his legal boxes, but ultimately consolidated his legal boxes
down to one and the remaining boxes are stored in the institution’s law
library. DAG Hardcastle indicates the legal boxes are neither destroyed
nor tampered with. Furthermore, Mr. Tagle is able to access the legal
boxes at any time he chooses through the law library. DAG Hardcastle,
however, is not able to state for certain the protocol Mr. Tagle must
employ to review the documents within his legal boxes.

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The court next discusses the relevance, if any exists, as to Plaintiff’s
assertions against former Clark County Discovery Commission Chris
Beecroft (now deceased) and Chief Deputy Attorney General Clark Leslie
in his motion for evidentiary hearing. The court hears statements from
Mr. Tagle but is unable to connect any relevance Beecroft or Leslie may
have to this case or the Plaintiff’s motion itself; neither is a defendant in
this action.

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After hearing from the parties, the court finds that the Defendant’s
response to Plaintiff’s motion (ECF No. 49) adequately addresses the
subject of Plaintiff’s legal boxes being stored at the institution’s law
library. The court instructs DAG Hardcastle to provide Mr. Tagle a
courtesy copy of the Defendant’s filing, ECF No. 49.

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IT IS THEREFORE ORDERED that Plaintiff’s motion for an evidentiary
hearing (ECF No. 55) is DENIED.6

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Whatever seizure occurred by NDOC of Plaintiff’s multiple file boxes was not the result of any
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order asserted by this court, nor any involvement by the Offices of the Attorney General - and certainly
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not the consequences by any act or omission by the one remaining Defendant in this action, i.e., Rowley.
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Instead, the confiscation occurred as a result of Plaintiff’s failure to follow the reasonable rules of the
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institution where Plaintiff is an inmate. Plaintiff’s failure to adhere to NDOC administrative regulations
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is a bed of his own making.
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Although Plaintiff was advised in the 6/19/17 Minutes of his ability to file an objection to the
orders set forth within the Minutes of Proceedings (ECF No. 98 at 3), it does not appear Plaintiff availed
himself of this opportunity.
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CONCLUSION

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The court therefore concludes that any seizure of Plaintiff’s legal storage boxes was not the

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product of any nefarious activity either by the Attorney General’s Office or this court. Nor was it

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occasioned by the only named Defendant in this action, C. Rowley, who was and appears to still be a

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custodial officer at ESP and had nothing to do with the alleged seizure of Plaintiff’s files.

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The court DENIES Plaintiff’s motion (ECF No. 121) for duplication at court expense of the
complaints in Plaintiff’s twenty-seven (27) civil actions in the U.S. District Court.

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Any party wishing to object to this order may file, pursuant to 28 U.S.C. § 636(b)(1)(A) and

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LR IB 3-1, specific written objections within fourteen (14) days of receipt. The deadline to file and serve

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any responses to the objections is fourteen (14) days after service of the objection. Replies will be

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allowed only with leave of the court.

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IT IS SO ORDERED.

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DATED: September 27, 2017.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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