Graham v. State of Nevada ( 2024 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 SANKONA GRAHAM, Case No. 2:24-cv-00790-ART-DJA 6 Plaintiff, ORDER v. 7 STATE OF NEVADA, et al., 8 Defendants. 9 10 Pro se plaintiff Sankona Graham brings this civil-rights action to redress 11 constitutional violations that he allegedly suffered while he was incarcerated in 12 the custody of the Nevada Department of Corrections (“NDOC”). Graham has 13 applied to proceed in forma pauperis. (ECF Nos. 1, 6). Based on the financial 14 information provided, the Court finds that Graham is unable to prepay the full 15 filing fee in this action. 16 On June 18, 2024, this Court screened Graham’s Second Amended 17 Complaint (“SAC”), allowing certain specified claims to proceed, dismissing other 18 claims without prejudice, and dismissing the remaining claims with prejudice. 19 (ECF No. 25). The Court stayed this action for 90 days and referred it to the 20 Court’s Inmate Early Mediation Program. (Id.) The parties did not reach a 21 settlement at the mediation conference. (ECF No. 43). The Court thus grants 22 Graham’s in forma pauperis application, orders service upon the defendants, lifts 23 the stay, and addresses many of Graham’s pending motions for relief.1 24 25 26 27 1 This order does not address Graham’s motions seeking injunctive relief (ECF 28 Nos. 35, 38), reconsideration of the screening order (ECF No. 27), or relief regarding the mediation conference (ECF No. 44). 2 A. Motion to seal (ECF No. 22) 3 Graham moves to seal “information of declarants[,]” vaguely arguing that 4 “declarants are now being targeted for providing testimony and threatened to fix 5 it by hurting or discrediting plaintiff.” (ECF No. 22). The only declarant’s 6 information that Graham clearly identifies in his motion is the declaration of 7 Jimmy Burgos. (See id.) Graham filed the declaration of fellow inmate Jimmy 8 Burgos in support of his first amended complaint and motion seeking a 9 temporary restraining order and a preliminary injunction. (ECF No. 19). The 10 Court has reviewed Burgos’s declaration, which states that certain corrections 11 officers have retaliated against him and failed to protect him and other inmates 12 while he was incarcerated at Ely State Prison (“ESP”). (Id.) 13 The Court has disregarded the first amended complaint and denied the 14 motions associated with non-party Burgos’s declaration. (See ECF No. 25). And 15 it finds that Burgos’s privacy interest in reports of officer misconduct is a 16 compelling reason to currently seal his declaration from the public’s view. See 17 Kamakana v. City and Cnty. of Honolulu, 447 F.3d 1172 (9th Cir. 2006) 18 (explaining the good-cause and compelling-reason standards for sealing judicial 19 records and documents); Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092 20 (9th Cir. 2016) (applying the compelling-reasons standard to exhibits to an 21 injunctive-relief motion that is “more than tangentially related to the merits of 22 [the] case”); accord Nev. LR IA 1-5 (c), (d) (explaining that documents filed under 23 seal must be served on opposing attorneys or pro se parties unless the moving 24 party provides an affidavit showing good cause why that should not happen). 25 Accordingly, the motion to seal is granted in part as to sealing Burgos’s 26 declaration from the public’s view and denied in all other respects. 27 28 2 Shortly before the Court screened the SAC, Graham filed a motion asking 3 for a screening order, and he filed a separate motion supporting his earlier-but 4 unsuccessful motions seeking the same relief. (ECF Nos. 23, 24). These motions 5 are moot and procedurally improper. This Court’s general order governing pro se 6 inmate non-habeas civil-rights filings instructs that “[n]o party may file a motion 7 if he or she has another motion on the same subject matter already pending 8 before the Court.” General Order No. 2021-05 at 5. “Motions submitted in 9 violation of this General Order may be struck or may be summarily denied.” (Id.) 10 “When a motion is filed, the opposing party may file one response, usually 11 an opposition.” Id. at 4. “After a response to a motion is filed, the party who filed 12 the motion may file a reply in support of the motion.” Id. But “[n]o other 13 documents, such as supplements or responses to the reply, may be filed unless 14 the Court grants permission to do so.” Id. “Parties must not use notices or letters 15 to ask the Court to rule on a motion.” Id. And “[t]he parties may not file evidence 16 with the Court until the course of litigation brings the evidence into question. 17 (ECF No. 2 at 3). 18 Graham is advised that his habit of filing new motions that are, in 19 substance, identical to motions he has already filed; filing motions seeking 20 updates or immediate action on matters that are already pending before the 21 Court; and filing notices and exhibits that are really just unauthorized 22 supplements to existing motions, will not increase the speed with which the Court 23 is able to proceed in this case. The Court has a heavy docket. And Graham’s 24 repetitive and borderline frivolous filings only slow the pace of this litigation by 25 requiring the Court’s attention and consideration of small and secondary matters 26 instead of the central issues in this case. Graham is warned that neither his 27 status as a pro se nor an indigent litigant will dissuade the Court from 28 2 Accordingly, the motions for a screening order are denied. 3 C. Motion for a free copy (ECF No. 28) 4 Graham moves the Court to provide him a free file-stamped copy of the 5 emergency motion for a preliminary injunction and/or protective order that was 6 filed at ECF No. 21. (ECF No. 28). Graham argues that he needs a free copy of 7 ECF No. 21 because he’s not sure if the documents filed at ECF Nos. 18 and 19 8 were correctly scanned by the prison’s law library, so he mailed a duplicate 9 injunctive-relief motion and exhibits to the Court as a protective measure. The 10 duplicate motion and exhibits were filed at ECF No. 21. This motion is moot, and 11 Graham is not entitled to the relief he seeks. 12 The Court has already explained that it received two complete copies of the 13 injunctive-relief motion and exhibits, and it denied both motions on their 14 identical merits. (See ECF No. 25 at 34–35). If Graham wishes to receive copies 15 of documents or files from the Court, the cost is $0.50 per page. 28 U.S.C. § 1914; 16 Nev. LR IC 1-1(i)(5) (e-filing institutions); Nev. LR 10-1 (mail institutions). 17 Although Graham should not mail documents to the Court for filing because he 18 is housed at an e-filing institution, if he wishes to receive a file-stamped copy of 19 such documents, then he must include an “additional copy for that purpose in 20 [his] mail filing.” (See ECF No. 2 at 2). Accordingly, the motion for a free file- 21 stamped copy of ECF No. 21 is denied. 22 D. Motion for the appointment of counsel (ECF No. 31) 23 A litigant does not have a constitutional right to appointed counsel in 42 24 U.S.C. § 1983 civil-rights actions. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th 25 Cir. 1981). Under 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to 26 represent any person unable to afford counsel.” But the court will appoint 27 counsel for indigent civil litigants only in “exceptional circumstances.” Palmer v. 28 Valdez, 560 F.3d 965, 970 (9th Cir. 2009). “When determining whether 2 on the merits as well as the ability of the petitioner to articulate his claims pro se 3 in light of the complexity of the legal issues involved.” Id. (cleaned up). “Neither 4 of these considerations is dispositive and instead must be viewed together.” Id. 5 Graham moves the Court to find and appoint him a free attorney, arguing 6 that his education is limited and this action presents complex issues. (ECF 7 No. 31). The Court is sympathetic to Graham’s limited education, but that is 8 common for inmates litigating civil-rights actions. The matters at issue here are 9 not particularly complex. And Graham has articulated colorable claims for relief 10 and demonstrated an ability to communicate the basis of his disputes to the 11 Court on a pro se basis. But the Court cannot conclude on this record that 12 Graham is likely to succeed on the merits of any claim. The Court does not find 13 exceptional circumstances warranting the appointment of counsel, so the motion 14 for that relief is denied without prejudice. 15 E. Motion to verify Graham’s identity (ECF No. 33) 16 What remains is Graham’s motion asking the Court to set a hearing to 17 verify his identity. (ECF No. 33). Graham argues that “NDOC/ESP has in the past 18 tampered with cases and access to the courts by foisting false denials, refusals, 19 or excuses to affect telephonics & hearings.” (Id. at 1). Graham also argues that 20 “they . . . have been suspected to use informants or other inmates to impersonate 21 [him] on A.G. calls.” (Id.) There are no factual allegations or evidence supporting 22 these fantastical assertions. 23 To support his argument, Graham generally cites to a civil-rights action 24 filed by another inmate who asserted that he failed to attend a court hearing on 25 December 20, 2022, because prison staff threatened to harm him if he did. (Id. 26 (citing Jasmine Sanchez v. Chet Rigney, Case No. 3:22-cv-00259-MMD-CSD (D. 27 Nev.) (“Sanchez”))). Graham’s reliance on Sanchez is mistaken. In Sanchez, the 28 district court found that the plaintiff’s “testimony was not credible, and that his 2 are false.” Sanchez, ECF Nos. 51 at 3 (R&R), 61 (order adopting R&R in full). 3 Accordingly, the motion for a hearing to verify Graham’s identity is denied. 4 II. CONCLUSION 5 It is therefore ordered that Graham’s application to proceed in forma 6 pauperis (ECF Nos. 1, 6) is GRANTED. Graham will not be required to pay an 7 initial installment of the filing fee. And Graham is permitted to maintain this 8 action to conclusion without the necessity of prepayment of any additional fees 9 or costs or the giving of security. But in the event that this action is later 10 dismissed, the full filing fee must still be paid under 28 U.S.C. § 1915(b)(2). 11 It is further ordered that the Nevada Department of Corrections will forward 12 payments from the account of SANKONA GRAHAM, #1271113 to the Clerk of 13 the United States District Court, District of Nevada, 20% of the preceding month’s 14 deposits—in months that the account exceeds $10—until the full $350 statutory 15 filing fee has been paid for this action. The Clerk of the Court will SEND a copy 16 of this order to (1) the Finance Division of the Clerk’s Office and (2) the attention 17 of Chief of Inmate Services for the Nevada Department of Corrections at 18 formapauperis@doc.nv.gov. 19 It is further ordered that the Clerk of the Court will electronically SERVE a 20 copy of this order and a copy of the Second Amended Complaint (ECF No. 26) on 21 the Office of the Attorney General of the State of Nevada by adding the Attorney 22 General of the State of Nevada to the docket sheet. This does not indicate 23 acceptance of service. 24 It is further ordered that service must be perfected within 90 days from the 25 entry date of this order consistent with Federal Rule of Civil Procedure 4(m). 26 It is further ordered that, subject to the findings of the screening order (ECF 27 No. 25), within 21 days from the entry date of this order, the Attorney General’s 28 Office will file a notice advising the Court and Graham of: (a) the names of the 2 it does not accept service, and (c) the names of the defendants for whom it is filing 3 the last-known-address information under seal. As to any of the named 4 defendants for whom the Attorney General’s Office cannot accept service, the 5 Office shall file, under seal, but shall not serve the inmate Graham the last known 6 address(es) of those defendant(s) for whom it has such information. If the last 7 known address of the defendant(s) is a post office box, the Attorney General’s 8 Office will attempt to obtain and provide the last known physical address(es). 9 It is further ordered that if service cannot be accepted for any of the named 10 defendant(s), Graham will file a motion identifying the unserved defendant(s), 11 requesting issuance of a summons, and specifying a full name and address for 12 the defendant(s). For the defendant(s) as to which the Attorney General’s Office 13 has not provided last-known-address information, Graham will provide the full 14 name and address for the defendant(s). 15 It is further ordered that if the Attorney General accepts service of process 16 for any named defendant(s), such defendant(s) shall file and serve an answer or 17 other response to the Second Amended Complaint (ECF No. 26) within 60 days 18 from the entry date of this order. 19 It is further ordered that Graham will serve upon defendant(s) or, if an 20 appearance has been entered by counsel, upon their attorney(s), a copy of every 21 pleading, motion, or other document submitted for the Court’s consideration. If 22 Graham electronically files a document with the Court’s electronic-filing system, 23 no certificate of service is required. Fed. R. Civ. P. 5(d)(1)(B); Nev. LR IC 4-1(b); 24 Nev. LR 5-1. But if Graham mails the document to the Court, he will include with 25 it a certificate stating the date that a true and correct copy of the document was 26 mailed to the defendants or their counsel. If counsel has entered a notice of 27 appearance, Graham will direct service to the individual attorney named in the 28 notice of appearance, at the physical or electronic address stated therein. The 2 judge that has not been filed with the Clerk, and any document received by a 3 district judge, magistrate judge, or the Clerk that fails to include a certificate 4 showing proper service when required. 5 It is further ordered that Graham’s motion to seal (ECF No. 22) is 6 GRANTED in part as to sealing the declaration of Jimmy Burgos (ECF No. 19) 7 from the public’s view and DENIED in all other respects. 8 It is further ordered that the Clerk of the Court will SEAL and MAINTAIN 9 THE SEAL on ECF No. 19 until the Court directs otherwise. 10 It is further ordered that Graham’s motions for a screening order, for a free 11 copy of ECF No. 21, and to verify his identity (ECF Nos. 23, 24, 28, 33) are 12 DENIED. 13 It is further ordered that the motion for the appointment of counsel (ECF 14 No. 31) is DENIED without prejudice. 15 It is further ordered that this case is no longer stayed. 16 It is further ordered that the Clerk of the Court will send Plaintiff Sankona 17 Graham a courtesy copy of General Order No. 2021-05. 18 19 DATED THIS 5th day of September, 2024. 20 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28