Thompson v. Russell ( 2024 )

2 DISTRICT OF NEVADA 2 3 3 DAVID THOMPSON, Case No.: 3:23-cv-00341-MMD-CSD 4 4 Plaintiff, 5 ORDER 5 v. 6 (ECF Nos. 9, 10) 6 PERRY RUSSELL, et al., 7 7 Defendants. 8 8 9 State prisoner David Thompson brings this civil-rights action under 42 U.S.C. 9 10 § 1983, contending that his rights were violated while he was incarcerated in the custody 10 11 of the Nevada Department of Corrections (“NDOC”). (See ECF No. 6). On March 13, 11 12 2024, the Court screened Plaintiff’s first amended complaint, allowing claims to proceed, 12 13 temporarily staying this action for 90 days, and referring it to the Court’s Inmate Early 13 14 Mediation Program. (ECF No. 7). A mediation conference is scheduled for May 14, 2024. 14 15 (ECF No. 12). However, Plaintiff moves to recuse or disqualify the Nevada Attorney 15 16 General’s Office from representing any party in this action, arguing there is a conflict of 16 17 interest. (ECF No. 9). And he moves for “default judgment,” arguing the Attorney 17 18 General’s Office failed to respond to the disqualification motion. (ECF No. 10). For the 18 19 reasons discussed below, the Court denies Plaintiff’s motions. 19 20 I. DISCUSSION 20 21 A. Motion for Default Judgment (ECF No. 10) 21 22 To the extent Plaintiff’s motion seeks entry of default or default judgment, his 22 23 requests are denied as premature. Default can be entered against a party who has failed 23 24 to plead or otherwise defend against an action. Fed. R. Civ. P. 55(a). Default judgment 24 25 can be entered against a party that has been defaulted if certain other requirements are 25 26 met. See id. at 55(b). But this action is still in the screening stage, which means no 26 27 defendant has been served with process and no defendant is currently required to defend 27 28 28 2 to defend against this action until the Court orders that to happen. 2 3 To the extent Plaintiff contends that either the NDOC or the Nevada Attorney 3 4 General’s Office is a proper defendant in this action, he is mistaken. Consistent with the 4 5 screening order, the Clerk of the Court added the NDOC to the docket as an interested 5 6 party for the purpose of participating in the Court’s mediation program. (See ECF No. 7 6 7 at 14). The Attorney General’s Office has entered a limited notice of appearance on behalf 7 8 of the NDOC for that narrow purpose. (ECF No. 11). 8 9 To the extent Plaintiff moves to sanction the NDOC or the Attorney General’s 9 10 Office for failing to respond to his disqualification motion, his request is denied. In the 10 11 screening order, the Court stayed this action for 90 days and instructed that “the parties 11 12 are not required to respond to any paper filed in violation of the stay unless specifically 12 13 ordered by the Court to do so.” (ECF No. 7 at 13). Plaintiff’s disqualification motion is not 13 14 among the papers that the Court excepted from the temporary stay of this action. (See id. 14 15 at 12–14). When Plaintiff filed his disqualification motion, docket text was automatically 15 16 generated stating that responses to the motion are due by March 29, 2024. (ECF No. 9). 16 17 But the Court clarifies that it has not ordered any response to that motion. 17 18 B. Motion to Disqualify Attorney General’s Office (ECF No. 9) 18 19 Because of their potential for abuse, the Ninth Circuit has cautioned that 19 20 “disqualification motions should be subjected to particularly strict judicial scrutiny.” Optyl 20 21 Eyewear Fashion Int'l Corp. v. Style Companies, Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985) 21 22 (cleaned up) (collecting cases). “As a general rule, courts do not disqualify an attorney on 22 23 the grounds of conflict of interest unless the former client moves for disqualification.” 23 24 Kasza v. Browner, 133 F.3d 1159, 1171 (9th Cir. 1998) (collecting cases). Federal courts 24 25 apply state law when determining whether to disqualify an attorney from representing a 25 26 party. In re Cnty. of Los Angeles, 223 F.3d 990, 995 (9th Cir. 2000). Under Nevada law, 26 27 “[t]he party seeking to disqualify an attorney bears the burden of establishing that it has 27 28 standing to do so.” State ex rel. Cannizzaro v. First Jud. Dist. Ct. in & for Cnty. of Carson 28 2 Dist. Court, 282 P.3d 733, 737 (Nev. 2012)). “The general rule is that only a former or 2 3 current client has standing to bring a motion to disqualify counsel on the basis of a conflict 3 4 of interest.” Id. (cleaned up) (quoting Liapis, 282 P.3d at 737; and Model Rules of Prof 1 4 5 Conduct R. 1.7 annot.). 5 6 Plaintiff lacks standing to move for disqualification. Plaintiff argues that a different 6 7 inmate filed a complaint with the Attorney General’s Office seeking to have it investigate 7 8 and prosecute the defendants for crimes against older persons arising out of the events 8 9 at issue in this action. (ECF No. 10 at 2–3). Plaintiff also argues that the Attorney 9 10 General’s Office committed fraud on the Court in his other lawsuit: Case No. 3:17-cv- 10 11 00670-RCJ-CSD. (ECF No. 9 at 2). Plaintiff might be referencing his appellate position 11 12 that defendants breached the parties’ settlement agreement by tendering the settlement 12 13 funds late, and Deputy Attorney General (“DAG”) Douglas Rands prematurely filed the 13 14 stipulation for dismissal. See Case No. 3:17-cv-00670-RCJ-CSD, at ECF Nos. 135, 138. 14 15 The Court notes that DAG Rands has not appeared in this action on behalf of the NDOC 15 16 or any defendant. In any event, Plaintiff provides no evidence that he is a current or former 16 17 client of the Attorney General’s Office or any of its attorneys. 17 18 To the extent Plaintiff contends that there is an inherent conflict because the 18 19 Nevada Attorney General’s Office is required to investigate and prosecute the 19 20 defendants, he is mistaken. Plaintiff’s reliance on 42 U.S.C. § 1997a is misplaced: that 20 21 statute authorizes the United States Attorney General to institute a civil action against 21 22 state actors to correct “egregious or flagrant” unconstitutional conditions affecting 22 23 institutionalized persons. The Nevada Attorney General, however, is “a constitutional 23 24 officer in the executive branch of government” whose various duties are established by 24 25 the Nevada Legislature. Whitehead v. Nevada Comm'n on Jud. Discipline, 878 P.2d 913, 25 26 917 (Nev. 1994) (citing Ryan v. District Court, 503 P.2d 842, 844 (Nev. 1972); and Nev. 26 27 Const. art. 5 § 19)). The Nevada Legislature has authorized the Attorney General’s Office 27 28 to investigate and prosecute certain crimes, but the office is not mandated to do so in 28 4| every instance. Rather, the office has discretion in exercising those functions. See, e.g., 2| Nev. Rev. Stat. § 228.270 (providing that a unit within the Attorney General's Office “may 3| investigate and prosecute alleged abuse, neglect, exploitation, isolation or abandonment 4| of an older person or vulnerable person” (emphasis added)); § 228.170(2) (providing that 5| “the Attorney General may investigate and prosecute any crime committed by a person” 6| who is incarcerated or acting in concert with an incarcerated person or involves violation 7| of NRS Chapter 212 (emphasis added)). Relevant here, the Nevada Legislature similarly g| has authorized the Attorney General to commence or defend civil suits “whenever the g| Governor directs or when, “in the opinion of the Attorney General,” such course of 10| action is “necessary” “to protect and secure the interest of the State[.]” Nev. Rev. Stat. 141} § 228.170(1) (emphasis added). 12 Neither Plaintiff's belief that a deputy attorney general committed fraud on the court 43| different action nor the mere submission of a complaint by Plaintiff or another inmate 44| to the Nevada Attorney General’s Office are sufficient to justify disqualifying that office 415| from representing any party in this action. Plaintiffs motion to disqualify the Attorney 16| General's Office is therefore denied. 17, IL. CONCLUSION 18 It is therefore ordered that Plaintiffs motions to disqualify the Nevada Attorney 49| General's Office (ECF No. 9) and for default judgment (ECF No. 10) are denied. 20 DATED THIS 11th day of April 2024. 21 CS 22 WE Kc 23 24 25 26 27 28