Lyons v. Russell

2 DISTRICT OF NEVADA [3] 3 WILLIAM LYONS, Case No.: 3:23-cv-00335-MMD-CSD [4] 4 Plaintiff, 5 ORDER 5 v. 6 (ECF Nos. 12, 15, 16) 6 PERRY RUSSELL, et al., [7] 7 Defendants. [8] 9 State prisoner William Lyons brings this civil-rights action under 42 U.S.C. § 1983 , [9] 10 contending that his rights were violated while he was incarcerated in the custody of the [10] 11 Nevada Department of Corrections (“NDOC”). (See ECF No. 7). On March 11, 2024, the [11] 12 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. 9). A mediation conference is scheduled for April 30, 2024. [14] 15 (ECF No. 14). However, Plaintiff moves to disqualify the Nevada Attorney General’s [15] 16 Office from representing any defendant in this action, arguing there is a conflict of interest [16] 17 because his brother filed a complaint with that office on his behalf contending that [17] 18 defendants’ alleged conduct constitutes a crime against older and vulnerable persons. [18] 19 (ECF No. 12). He seeks clarification about the status of the mediation conference [19] 20 considering his disqualification motion and to receive complete copies of two documents [20] 21 that he filed with the Court. (ECF No. 15). And Plaintiff moves to exclude this action from [21] 22 mediation based on his disqualification motion. (ECF No. 16). [22] 23 Plaintiff also repeatedly argues that the Court ordered the Attorney General’s [23] 24 Office to respond to the disqualification motion by April 1, 2024, and it has failed to do so. [24] 25 (ECF Nos. 15 at 2, 16 at 2). Plaintiff’s disqualification motion is not among papers the [25] 26 Court excepted from the temporary stay of this action. (See ECF No. 9 at 15–16). Docket [26] 27 text was automatically generated when Plaintiff filed his disqualification motion stating [27] 28 that responses to the motion are due by April 1, 2024. But the Court clarifies that it has [28] 2 discussed below, the Court denies Plaintiff’s motions except to the narrow extent of [2] 3 ensuring that he receives a complete copy of documents he claims are missing pages. [3] 4 I. DISCUSSION [4] 5 Because of their potential for abuse, the Ninth Circuit has cautioned that [5] 6 “disqualification motions should be subjected to particularly strict judicial scrutiny.” Optyl [6] 7 Eyewear Fashion Int'l Corp. v. Style Companies, Ltd., 760 F.2d 1045 , 1050 (9th Cir. 1985) [7] 8 (cleaned up) (collecting cases). “As a general rule, courts do not disqualify an attorney on [8] 9 the grounds of conflict of interest unless the former client moves for disqualification.” [9] 10 Kasza v. Browner, 133 F.3d 1159, 1171 (9th Cir. 1998) (collecting cases). Federal courts [10] 11 apply state law when determining whether to disqualify an attorney from representing a [11] 12 party. In re Cnty. of Los Angeles, 223 F.3d 990 , 995 (9th Cir. 2000). Under Nevada law, [12] 13 “[t]he party seeking to disqualify an attorney bears the burden of establishing that it has [13] 14 standing to do so.” State ex rel. Cannizzaro v. First Jud. Dist. Ct. in & for Cnty. of Carson [14] 15 City, 466 P.3d 529 , 531–32 (Nev. 2020) (cleaned up) (quoting Liapis v. Second Judicial [15] 16 Dist. Court, 282 P.3d 733, 737 (Nev. 2012)). “The general rule is that only a former or [16] 17 current client has standing to bring a motion to disqualify counsel on the basis of a conflict [17] 18 of interest.” Id. (cleaned up) (quoting Liapis, 282 P.3d at 737 ; and Model Rules of Prof 1 [18] 19 Conduct R. 1.7 annot.). [19] 20 Plaintiff lacks standing to move for disqualification. Plaintiff’s evidence purports to [20] 21 show that his brother filed a consumer-complaint form with the Attorney General’s Office [21] 22 on his behalf seeking to have the Nevada Attorney General’s Office investigate and [22] 23 prosecute the defendants for crimes against older persons arising out of the events at [23] 24 issue in this action. (ECF No. 12 at 11–22). But Plaintiff provides no evidence that he is [24] 25 a current or former client of that office or any of its attorneys. As the Attorney General’s [25] 26 Office explained in the letter it sent to Plaintiff declining to pursue the matters raised in [26] 27 his consumer-complaint form, the office “acts as legal counsel for state agencies and [27] 28 therefore cannot act as a private attorney to individual citizens.” (ECF No. 12 at 31). [28] 2 Nevada Attorney General’s Office is required to investigate and prosecute the [2] 3 defendants, he is mistaken. Plaintiff’s reliance on 42 U.S.C. § 1997a is misplaced: that [3] 4 statute authorizes the United States Attorney General to institute a civil action against [4] 5 state actors to correct “egregious or flagrant” unconstitutional conditions affecting [5] 6 institutionalized persons. The Nevada Attorney General is “a constitutional officer in the [6] 7 executive branch of government” whose various duties are established by the Nevada [7] 8 Legislature. Whitehead v. Nevada Comm'n on Jud. Discipline, 878 P.2d 913, 917 (Nev. [8] 9 1994) (citing Ryan v. District Court, 503 P.2d 842, 844 (Nev. 1972); and Nev. Const. art. [9] 10 5 § 19)). The Nevada Legislature has authorized the Attorney General’s Office to [10] 11 investigate and prosecute certain crimes, but the office is not mandated to do so in every [11] 12 instance. See, e.g., Nev. Rev. Stat. § 228.270 (providing that a unit within the Attorney [12] 13 General’s Office “may investigate and prosecute alleged abuse, neglect, exploitation, [13] 14 isolation or abandonment of an older person or vulnerable person” (emphasis added)); [14] 15 § 228.170(2) (providing that “the Attorney General may investigate and prosecute any [15] 16 crime committed by a person” who is incarcerated or acting in concert with an [16] 17 incarcerated person or involves violation of NRS Chapter 212 (emphasis added)). The [17] 18 Nevada Legislature similarly has authorized the Attorney General to commence or defend [18] 19 a civil suit “whenever the Governor directs or when, “in the opinion of the Attorney [19] 20 General,” such course of action is “necessary” “to protect and secure the interest of [20] 21 the State[.]” Nev. Rev. Stat. § 228.170 (1) (emphasis added). [21] 22 Neither Plaintiff’s belief that the defendants committed criminal acts, nor the [22] 23 submission of his unsuccessful consumer-complaint form are sufficient to justify [23] 24 disqualifying the Nevada Attorney General from representing any defendant in this action [24] 25 or Interested Party NDOC. Plaintiff’s motion to disqualify the Attorney General’s Office is [25] 26 therefore denied. [26] 27 This action is eligible to participate in the Court’s mediation program. Plaintiff’s [27] 28 belief that a conflict exists with the Nevada Attorney General’s Office is the sole basis for [28] 2 the disqualification motion, and Plaintiff states in his most recent motion that he is willing [2] 3 to negotiate with the NDOC. (ECF No. 16 at 3). Considering the foregoing, this still [3] 4 appears to be a case where both sides could have productive settlement discussions and [4] 5 save resources by participating in the Court’s mediation program. Plaintiff’s motion to [5] 6 exclude this action from mediation is therefore denied. [6] 7 What remains is Plaintiff’s argument that he has not received “cover pages” for [7] 8 ECF Nos. 9 and 11 or the courtesy copy of his first amended complaint that was [8] 9 hyperlinked to the Court’s screening order. (ECF No. 16 at 2). The Court assumes “cover [9] 10 page” means the electronic transmission receipt for ECF Nos. 9 and 11. Plaintiff argues [10] 11 that the prison’s law library sent him incomplete copies of ECF Nos. 9 and 11 after he [11] 12 sent a kite complaining he did not receive those filings at all. (Id.) It is not clear if Plaintiff [12] 13 has alerted the law library that he received incomplete copies of these filings. Ordinarily, [13] 14 an inmate should attempt to resolve issues about missing or incomplete filings with the [14] 15 law library before filing a motion with the Court. But considering mediation is scheduled [15] 16 for later this month, the Court will direct the Clerk of the Court to send Plaintiff complete [16] 17 copies of the screening order (ECF No. 9), courtesy copy of the first amended complaint [17] 18 (ECF No. 9-1), and plaintiff’s notice (ECF No. 11). [18] 19 II. CONCLUSION [19] 20 It is therefore ordered that Plaintiff’s motion to disqualify the Nevada Attorney [20] 21 General’s Office (ECF No. 12) is denied. [21] 22 It is further ordered that Plaintiff’s motion to exclude this action from mediation [22] 23 (ECF No. 16) is denied. [23] 24 It is further ordered that Plaintiff’s motion for clarification (ECF No. 15) is granted [24] 25 in part as to ensuring that Plaintiff receives complete copies of the screening order, first [25] 26 amended complaint, and notice; and the motion is denied in all other respects. [28] 1 It is further ordered that the Clerk of the Court will send to Plaintiff complete copies 2| of the screening order (ECF No. 9), courtesy copy of the first amended complaint (ECF 3| No. 9-1), and his notice (ECF No. 11). 4 DATED THIS 10th day of April 2024. _ CS Ox 6 UNITED STATES Mge@|ISTRATE JUDGE