Olausen v. Second Judicial District Court

[2] 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 JOHN STEVEN OLAUSEN, Case No. 3:20-cv-00402-MMD-WGC 7 Plaintiff, ORDER v. [8] SECOND JUDICIAL DISTRICT COURT 9 OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, et al., [10] Defendants. [11] 12 I. SUMMARY 13 Plaintiff John Steven Olausen filed his First Amended Complaint in this civil rights 14 action under 42 U.S.C. § 1983 against the Second Judicial District Court of Nevada in 15 Washoe County (“State Court”), the Clerk of Court Jacqueline Bryant, the Washoe County 16 Public Defender, Appointed Conflict Administrator Cotter Conway, and employees of the 17 Conflict Administrator, Richard F. Cornell, and Lynn Beggs. (ECF No. 16.) Plaintiff asserts 18 that Defendants collectively violated his First, Fifth, Sixth, and Fourteenth Amendment 19 rights under the United States Constitution by denying him access to the courts and his 20 right to qualified counsel at his sentencing re-hearing. (Id. at 3-4.) Plaintiff moves now for 21 emergency declaratory judgment and judgment on the pleadings (“Motion for Declaratory 22 Judgment”) (ECF No. 17), and a temporary restraining order/preliminary injunction (“First 23 Injunction Motion”) (ECF Nos. 19, 20).1 Three days later, Plaintiff filed another motion for 24 a temporary restraining order/preliminary injunction (“Second Injunction Motion”). (ECF 25 Nos. 24, 25.)2 The Court denies the Motion for Declaratory Judgment because [26] 27 1These filings are identical and are captioned “Motion for Temporary Restraining Order and Preliminary Injunction.” (Id.) [28] 2As with the First Injunction Motion, Plaintiff filed identical briefs and captioned 2 The Court also denies both Injunction Motions because Plaintiff cannot demonstrate a 3 likelihood of success on the merits. 4 II. BACKGROUND 5 A. Procedural History 6 In 1979, Plaintiff pled guilty to first-degree murder, robbery with use of a deadly 7 weapon, and kidnapping with use of a deadly weapon, and was sentenced to death. 8 Wilson v. State, 771 P.2d 583, 584 (Nev. 1989). The Nevada Supreme Court upheld 9 Plaintiff’s sentence twice. See Wilson v. State, 664 P.2d 328 (1983); Wilson v. State, 705 10 P.2d 151 (1985). However, in post-conviction relief proceedings, the Nevada Supreme 11 Court ultimately found that Plaintiff had a meritorious claim that his Sixth Amendment right 12 to effective assistance of counsel had been violated in his sentencing hearing. See 13 Wilson, 771 P.2d at 584. Accordingly, on March 30, 1989, the Nevada Supreme Court 14 vacated Plaintiff’s death sentence and remanded his case to the state district court for 15 another penalty hearing. Id. 16 The state district court then resentenced Plaintiff to life imprisonment without the 17 possibility of parole. State v. Olausen, Case No. C79-1086 (Nev. Dist. Ct. Dec. 7, 1989). 18 But Plaintiff believes that the Nevada Supreme Court vacated not only his sentence but 19 also his conviction. Accordingly, he sought collateral habeas relief in federal district court. 20 Plaintiff’s first petition was denied, with some claims denied on the merits and others 21 procedurally barred.3 Plaintiff’s filed a second petition under 28 U.S.C. § 2241 , but the 22 Court found that it was a successive petition that should have been properly brought 23 under § 2254.4 The Court transferred the petition to the Ninth Circuit Court of Appeals 24 because Plaintiff had not obtained permission to file a successive petition under § [25] 26 3Olausen v. Helling, Case No. 3:01-cv-00499-LRH-RAM. Judgment entered June 29, 2005. (ECF No. 87.) [27] 4Olausen v. McDaniel, Case No. 3:05-cv-00631-LRH-RAM. Order finding petition 28 was impermissible successive petition entered May 11, 2006. (ECF No. 8.) 2 his successive petition could not be brought under § 2241) and substantively (that he was 3 in fact imprisoned under a valid conviction or sentence). See Olausen v. McDaniel, Case 4 No. 3:08-cv-00447-LRH-RAM, 2010 WL 4810369 , at *1-2 (D. Nev. Nov. 19, 2010) 5 (excerpting the Ninth Circuit’s February 26, 2007 order). The Ninth Circuit found that when 6 the Nevada Supreme Court vacated Plaintiff’s death sentence, it did not acquit him but 7 “left his conviction for first degree murder intact.” See id. at *2 . Because the state district 8 court on remand sentenced Plaintiff to life in prison without the possibility of parole, the 9 Ninth Circuit found he had been properly convicted and sentenced. See id. Pending and 10 after the Ninth Circuit’s disposition, Plaintiff filed several federal habeas petitions, all of 11 which were denied as impermissible successive petitions.6 12 B. Plaintiff’s Current Request 13 Plaintiff then sought renewed relief in state court. In an order again denying 14 Plaintiff’s requested habeas relief as a successive petition, the Nevada Supreme Court 15 noted that the record appeared to be missing a judgment of conviction for Plaintiff’s 16 kidnapping and robbery counts from his original 1979 sentencing. Olausen v. Benedetti, 17 Case No. 63360, 2014 WL 494863 , at *2 (Nev. Jan. 16, 2014).7 Only a certified copy with 18 the judge’s name typewritten remained. Id. The Nevada Supreme Court then directed the 19 state district court to “inquire into the whereabouts of the original judgment of conviction 20 setting forth sentences for the kidnapping and robbery counts, and if an original cannot 21 be found, to enter a judgment of conviction nunc pro tunc to the sentencing date of [23] 5Id. [24] 6Olausen v. Dir., Nev. Dep’t of Corrections, Case No. 3:06-cv-00069-PMP-VPC; 25 Olausen v. McDaniel, Case No. 3:06-cv-257-LRH-VPC; Olausen v. McDaniel, Case No. 3:08-cv-00447-LRH-RAM; Olausen v. Sheriff of Washoe Cty. Jail, Case No. 3:08-cv26 00527-LRH-RAM; Olausen v. Benedetti, Case No. 3:10-00388-LRH-RAM; Olausen v. Cox, 3:14-cv-00315-RCJ-WGC (dismissed for failure to pay filing fee); Olausen v. Baca, 27 Case No. 3:15-cv-00127-RCJ-VPC, 2015 WL 6962869 (D. Nev. Nov. 9, 2015). 28 7This decision is unpublished and is referred to solely for procedural history purposes. 2 entered judgment nunc pro tunc. (ECF No. 19 at 8-10 (“Ex. A”).) 3 Plaintiff then filed a complaint with this Court, requesting that the Court enjoin the 4 state district court from codifying his sentence in this manner. (ECF No. 8.)8 The Court 5 denied Plaintiff’s requests for emergency relief, in part because it found that Plaintiff’s 6 requested relief would require it to exercise jurisdiction over a state court in violation of 7 the Rooker-Feldman doctrine. (ECF No. 9 at 2.) Plaintiff sought relief from this denial 8 under Rule 60(a) (ECF No. 11), and the Court denied that relief (ECF No. 12). Plaintiff 9 then obtained leave to file an amended complaint and did so. (ECF Nos. 14, 15, 16.) In 10 the Amended Complaint, Plaintiff argues that he has a § 1983 civil rights claim against 11 Defendants because they are violating his First, Fifth, Sixth, and Fourteenth Amendment 12 rights. (ECF No. 16 at 9-10.) Plaintiff asks the court to issue a temporary restraining order 13 requiring the state district court to “cease-and desist” any actions that impede him from 14 obtaining representation by counsel for “pre-(kidnapping and robbery) sentencing phase.” 15 (Id. at 11.) Plaintiff further requests that the Court order his transfer from Northern Nevada 16 Correctional Center to the Washoe County Jail so that he may be brought in for a hearing 17 respecting his right to counsel for the pre-sentencing phase of his kidnapping and robbery 18 counts. (Id.) 19 III. MOTION FOR EMERGENCY DECLARATORY RELIEF 20 Plaintiff’s Motion for Declaratory Judgment will be denied because it is premature. 21 Plaintiff requests the Court immediately enter judgment in his favor under Federal Rule 22 of Civil Procedure 12(c). (ECF No. 17.) But to date, none of the Defendants in this action 23 have been served; consequently, none of the Defendants has responded to Plaintiff’s 24 First Amended Complaint. A party may request judgment on the pleadings, but only 25 “[a]fter the pleadings are closed.” Fed. R. Civ. P. 12(c). Because Defendants have not yet [26] 27 8Plaintiff originally sought emergency declaratory judgment and a temporary restraining order/preliminary injunction, as he does here, but then filed a Complaint on 28 July 24, 2020. (ECF Nos. 3, 4, 6, 7.) 2 not closed. Accordingly, the Court will deny Plaintiff’s Motion for Declaratory Judgment. 3 IV. MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY 4 INJUNCTION 5 Plaintiff also moves for preliminary injunctive relief. (ECF Nos. 19, 20, 24, 25.) In 6 the First Injunction Motion, Plaintiff requests, in essence, that the Court order his transfer 7 to Washoe County Jail and bring him before this Court for a hearing so that he may 8 present argument in support of an injunction that would enjoin the state district court and 9 its officers from impeding the relief he believes the Nevada Supreme Court granted him 10 in his 1989 habeas action. (ECF No. 19 at 9.) 11 In the Second Injunction Motion, Plaintiff describes conditions of confinement that 12 interfere with his ability to prepare his legal defense and requests that the Court enjoin 13 prison officials from taking further retaliatory action against him. (ECF No. 24 at 1.) 14 Because Plaintiff is unlikely to succeed on the merits of the First Injunction Motion and 15 because the Second Injunction Motion cannot grant Plaintiff’s requested relief, the Court 16 will deny both motions. 17 A. Legal Standard 18 “A document filed pro se is to be liberally construed.” Erickson v. Pardus, 551 U.S. 19 89, 94 (2007) (internal quotation marks and citation omitted). However, a plaintiff must 20 still present factual allegations sufficient to state a plausible claim for relief. Hebbe v. 21 Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010). To qualify for a preliminary injunction, a 22 plaintiff must satisfy four requirements: (1) a likelihood of success on the merits; (2) a 23 likelihood of irreparable harm; (3) that the balance of equities favors the plaintiff; and (4) 24 that the injunction is in the public interest. See Winter v. Natural Res. Defense Council, 25 Inc., 555 U.S. 7, 20 (2008).9 But a preliminary injunction is “an extraordinary remedy that [27] 9Temporary restraining orders are governed by the same standard applicable to 28 preliminary injunctions. See Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d 832 , 839 n.7 (9th Cir. 2001). 2 at 22. 3 B. First Injunction Motion 4 The Court will deny Plaintiff’s First Injunction Motion because notice has not issued 5 to Defendants and Plaintiff is not likely to succeed on the merits. First, “[t]he court may 6 issue a preliminary injunction only on notice to the adverse party.” Fed. R. Civ. P. 65(a) 7 Plaintiff has not yet served any Defendants in this action, so issuing an injunction at this 8 time would be premature. Further, Plaintiff has not shown any reason why his 9 circumstances require a temporary restraining order to issue ex parte, without notice to 10 Defendants. 11 Second, Plaintiff has failed to demonstrate that he is likely to succeed on the merits 12 of his access to courts claim. As the Court explained in its prior order several legal 13 doctrines prevent a federal court from interfering with state court proceedings. First, a 14 federal district court may not act as an appellate court, reviewing the decisions of a state 15 trial court. Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. 16 Feldman, 460 U.S. 482 -86 (1983). This doctrine prevents the Court from functionally 17 overturning the Nevada court’s initial sentencing. As the Court presently understands the 18 procedural history of this case, Plaintiff was initially sentenced to death in 1979. Then, in 19 1989, the Nevada Supreme Court vacated his death sentence and remanded the case to 20 state district court for re-sentencing with the opportunity to present pertinent mitigating 21 evidence. The district court then re-sentenced Plaintiff in December 1989 to life 22 imprisonment without the opportunity of parole. Insofar as Plaintiff is requesting the Court 23 overturn the state court’s December 1989 sentencing, the Court may not do so, and 24 Plaintiff will lose that argument on the merits. 25 The Rooker-Feldman doctrine would similarly apply if Plaintiff is requesting the 26 Court overturn the district court’s order to enter a judgment of conviction nunc pro tunc. 27 The state district court, acting under order of the Nevada Supreme Court, entered 28 judgment as to the kidnapping and robbery counts based on the certified copy of judgment 2 reliable and the missing original judgment merely lost in the record. (Id.) This Court may 3 not review that determination, and if Plaintiff seeks relief from that decision, he must seek 4 review in the state court. 5 But even if the Rooker-Feldman doctrine did not apply, Plaintiff has failed to 6 demonstrate that injunctive relief is warranted at this stage. Plaintiff has not shown that 7 he is likely to succeed on the merits of his claims. Plaintiff claims the state district court’s 8 actions have impeded his constitutional right to access the courts, specifically relying on 9 the Nevada Supreme Court’s 1989 order vacating his sentence. (ECF No. 19 at 6.) But 10 the Nevada Supreme Court order that he relies upon did not acquit him or vacate his 11 conviction. He was entitled to re-sentencing with assistance of effective counsel, and he 12 received that in December 1989. Insofar as Plaintiff is currently asking to re-litigate his 13 criminal case, the Court is without power to grant that relief under a § 1983 civil rights 14 action.10 15 Because Plaintiff has failed to demonstrate that he is likely to succeed on the merits 16 of his claim, the court will deny the First Injunction Motion. 17 C. Second Injunction Motion 18 The Court will also deny Plaintiff’s Second Injunction Motion because Plaintiff’s 19 requested relief is not possible to grant against the persons responsible for Plaintiff’s 20 alleged harm. As with the First Injunction Motion, no parties have been served. But with 21 the harm Plaintiff describes in the Second Injunction Motion, that the warden at NNCC 22 sprayed his room with chemicals that soaked his legal manual and prevented him from 23 being able to adequately prepare his appeal, states an allegation against individuals and 24 institutions that are not even parties to this lawsuit. (ECF No. 24 at 1.) Under Rule 65, a 25 preliminary injunction may bind parties, “officers, agents, servants, employees, and 26 attorneys,” and persons “in active concert or participation” with the parties or parties’ [27] 28 10That relief must be sought via a habeas petition, which it appears that Plaintiff knows and has already sought. 1 || officers. Fed. R. Civ. P. 65(d)(2). Plaintiff has failed to adequately demonstrate that the 2 || warden at NNCC or others responsible for the harms stated in the Second Injunction 3 || Motion are “in active concert or participation” with the parties in this lawsuit. See jd. 4 || Accordingly, the requested relief would not be enforceable against the persons 5 || responsible for Plaintiff's state harm. 6 || V. CONCLUSION 7 The Court notes that the parties made several arguments and cited to several 8 || cases not discussed above. The Court has reviewed these arguments and cases and 9 || determines that they do not warrant discussion as they do not affect the outcome of the 10 || motions before the Court. 11 It is therefore ordered that plaintiff's motion for emergency declaratory judgment 12 || (ECF No. 17) is denied. 13 It is further ordered that plaintiff's motion for temporary restraining order (ECF No. 14 || 19) is denied. 15 It is further ordered that plaintiffs motion for preliminary injunction (ECF No. 20) is 16 || denied. 17 It is further ordered that plaintiff's second motion for temporary restraining order 18 || (ECF No. 24) is denied. 19 It is further ordered that plaintiff's second motion for preliminary injunction (ECF 20 || No. 25) is denied. 21 DATED THIS 30" Day of December 2020. [22] AQ [24] MIRANDA M. DU 25 CHIEF UNITED STATES DISTRICT JUDGE