Thompson v. Russell

2 DISTRICT OF NEVADA [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] 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 [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-cv10 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