Hazel v. Russell ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 * * * 9 TERRANCE HAZEL, Case No. 3:20-cv-00428-LRH-CLB 10 Petitioner, ORDER 11 v. 12 RUSSEL, et al., 13 Respondents. 14 15 On August 19, 2020, this court dismissed Terrance Hazel’s pro se habeas corpus 16 petition for failure to state a claim for which habeas corpus relief may be granted (ECF 17 No. 3). Judgment was entered (ECF No. 4). Almost three months after this case was 18 closed, Hazel has filed a motion for reconsideration and what he has styled as an 19 emergency motion for a virtual hearing (ECF Nos. 5, 6). As discussed below, the 20 motions are denied. 21 Rule 60(b) entitles the moving party to relief from judgment on several grounds, 22 including the catch-all category “any other reason justifying relief from the operation of 23 the judgment.” Fed.R.Civ.P. 60(b)(6). A motion under subsections (b)(4-6) must be 24 brought “within a reasonable time.” Fed.R.Civ.P. 60(c)(1). Relief under subsection 25 (b)(6) requires a showing of “extraordinary circumstances.” Gonzalez v. Crosby, 545 26 U.S. 524, 535 (2005). 27 Inmates in state custody pursuant to a state-court judgment who challenge their 1 U.S.C. § 2254 petition for writ of federal habeas corpus. Further, “relief is available to a 2 prisoner under the federal habeas statute only if success on the claim would 3 ‘necessarily spell speedier release’ from custody.” Nettles v. Grounds, 788 F.3d 992, 4 1001 (9th Cir. 2015); 28 U.S.C. § 2254. 5 In his petition, Hazel claims that Northern Nevada Correctional Center personnel 6 are not complying with COVID-19 pandemic safety protocols in deliberate indifference 7 to serious medical and safety needs (ECF No. 1, pp. 3-4). As the court stated in its 8 order dismissing the petition, such a claim implicates petitioner’s Eighth Amendment 9 rights under 28 U.S.C. § 1983, not habeas corpus. He also seeks to assert a claim 10 under the Americans with Disabilities Act. Id. at 7-8. 11 In his motion for reconsideration Hazel urges—correctly—that rates of COVID-19 12 infection in Nevada prisons and jails continue to rise precipitously.1 He argues that he 13 is particularly vulnerable to falling seriously ill if he contracts COVID-19 due to his age, 14 race, and mental and physical disabilities. Without question it is critical that NDOC 15 institutions comply with their stated COVID-19 safety protocols. However, as this court 16 has stated in other cases, in this district, Hazel must file a civil rights complaint if he 17 wishes to pursue these claims.2 18 Hazel has not presented a basis for the court to grant Rule 60(b) relief. 19 Accordingly, the motion for reconsideration is denied. 20 IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF 21 No. 5) and emergency motion for virtual hearing (ECF No. 6) are both DENIED. 22 IT IS FURTHER ORDERED that a certificate of appealability is denied. 23 IT IS FURTHER ORDERED that the Clerk send to petitioner one copy each of 24 the prisoner application to proceed in forma pauperis and 42 U.S.C. § 1983 complaint 25 form and instructions, along with the papers he filed in this action. 26 27 1See, e.g., https://thenevadaindependent.com/article/with-nevada-prison-covid-19-cases-quadrupling-in- two-weeks-families-call-for-early-releases. 1 IT IS FURTHER ORDERED that the Clerk resend to petitioner one copy of this 2 || court’s order dated August 19, 2020 at ECF No. 3. 3 4 DATED this 9th day of December, 2020. . Mhihee_ 6 LA . HICKS ; UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28