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Case 3:11-cv-00047-LRH-WGC Document 38 Filed 05/09/13 Page 1 of 5


CATHERINE CORTEZ MASTO
Nevada Attorney General
BRIAN W. HAGEN
Deputy Attorney General
Nevada Bar No. 11389
Bureau of Litigation
Public Safety Division
100 N. Carson Street
Carson City, NV 89701-4717
Tel: 775-684-1136
Email: [email protected]

Attorneys for Defendants Romeo Aranas, Isidro Baca,
Cheryl Burson, James “Greg” Cox, Roland Daniels,
Jerry Howell, Paula Miller, Cole Morrow, Umair Moten,
David Mumford, Dwight Neven, Francisco Sanchez,
Howard Skolnik, William Tate, Kay Weiss, Brian Williams, Sr.
and Connor Wolf



UNITED STATES DISTRICT COURT



DISTRICT OF NEVADA




JASON M. JONES,



v.

DOROTHY NASH HOLMES, et al.,



Plaintiff,











Defendants.





Case No. 3:11-cv-00047-LRH-WGC




RESPONSE TO PLAINTIFF’S MOTION TO

STOP RETALIATION AND

RECONSIDERATION OF APPOINTMENT

OF COUNSEL

Defendants, by and through counsel, Catherine Cortez Masto, Nevada Attorney

General, and Brian W. Hagen, Deputy Attorney General, oppose Plaintiff’s Motion to Stop

Retaliation and Reconsideration of Appointment of Counsel (#37). This opposition is brought

pursuant to Fed. R. Civ. P. 7(b) and Local Rule 7-2 and is based on Fed. R. Civ. P. 65, the

following memorandum of points and authorities, and all papers and pleadings on file in this

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case.

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Through the present motion, Plaintiff is now alleging a new constitutional violation that

was not presented in his complaint and is not properly before the Court, specifically a claim of

retaliation. (See Doc. #4; Doc. #37). Plaintiff claims that Defendants are attempting to force

him to “police the tier,” spreading false propaganda in an effort to incite other inmates to injure

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Office of the

Attorney General
100 N. Carson St.
Carson City, NV

89701-4717

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Case 3:11-cv-00047-LRH-WGC Document 38 Filed 05/09/13 Page 2 of 5

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the Plaintiff, enforcing false and retaliatory prison discipline, improperly denying grievances

and throwing away paperwork. (#37).



Each of these allegations is separate and distinct from his allegations in the complaint.

This Court, though vested with the power to control its docket, lacks the power to remedy

alleged collateral misconduct of non-parties to this litigation.

A. PLAINTIFF IS NOT ENTITLED TO INJUNCTIVE RELIEF



Interpreting the pleading in the most favorable light, it appears to be a Motion for

Preliminary Injunction.1 A preliminary injunction is an “extraordinary and drastic remedy” that

is never awarded as a matter of right. Munaf v. Green, 553 U.S. 674, 689-690 (2008)

(internal citations omitted). The purpose of preliminary injunctive relief is to “preserve the

status quo pending a determination of the case on the merits.” Sierra Forest Legacy v. Rey,

577 F.3d 1015, 1023 (9th Cir. 2009) quoting Los Angeles Mem’l Coliseum Comm’n v. Nat’l

Football League, 634 F.2d 1197, 1200 (9th Cir. 1980). Preliminary injunctive relief is intended

to protect against the irreparable loss of rights prior to judgment on the merits of a claim.

Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). It may be

awarded only on a clear showing that the Plaintiff is entitled to relief. Winter v. Natural

Resources Defense Council, Inc., 129 S.Ct. 365, 376 (2008).

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The Ninth Circuit uses two alternative tests to determine when preliminary injunctive

relief should issue. Under the traditional test, a preliminary injunction should issue only if the

Plaintiff demonstrates: (1) a strong likelihood of success on the merits, (2) the possibility of

irreparable injury to plaintiff if preliminary relief is not granted, (3) a balance of hardships

favoring the plaintiff, and (4) advancement of the public interest. Textile Unlimited, Inc. v.

A..BMH and Co., Inc., 240 F.3d 781, 786 (9th Cir. 2001) citing Los Angeles Mem’l Coliseum

Comm’n, 634 F.2d at 1201. Alternatively, the party seeking preliminary injunctive relief may

meet its burden by demonstrating “a combination of probable success on the merits and the

possibility of irreparable harm” or “that serious questions are raised and the balance of

hardships tips in its favor.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.

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Office of the

Attorney General
100 N. Carson St.
Carson City, NV

89701-4717


1 The Motion also requests the appointment of counsel.
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Case 3:11-cv-00047-LRH-WGC Document 38 Filed 05/09/13 Page 3 of 5



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2001) citing Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 867, 874 (9th

Cir. 2000).



Nothing concerning the allegations presented in the Motion (#37) indicate that Plaintiff

is any more likely to succeed on the merits of the underlying action. Further, a party seeking

preliminary injunctive relief must show “[a] relationship between the injury claimed in the

party’s motion and the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d

470, 471 (8th Cir. 1994). Here, any alleged irreparable injury presented by these allegations

is separate and distinct from the underlying lawsuit. Next, the balance of equities in this case

does not tip sharply in favor of Plaintiff. In Bell v. Wolfish, 441 U.S. 520, 547 (1979), the

Supreme Court noted that prison administrators and officials must be accorded wide-ranging

deference in the adoption of policies and practices that, in their judgment, are needed to

preserve internal order and maintain prison security. Plaintiff has failed to demonstrate that

he is likely to succeed on the merits of the alleged retaliation claim and he has failed to

demonstrate that there is a likelihood he will be subjected to irreparable harm. On the other

hand, issuing preliminary injunctive relief in this case would require the Court to interfere with

the daily operation of the NDOC in the absence of any evidence that the allegations of

retaliation have merit. Given that Courts are required to accord “substantial weight” to the

effects injunctive relief may have on the operation of the prisons, and given the wide-ranging

deference the Court is required to accord prison officials, the balance of hardships favors

Defendants. See Bell, 441 U.S. at 547; 18 U.S.C. §3626(a)(2). Additionally, unnecessary

court intervention in the operations of prisons does not serve any public interest.





B. Request for Counsel

As Plaintiff notes, a finding of "exceptional circumstances" under 28 U.S.C. § 1915(e)

requires an evaluation of both the likelihood of success on the merits and the ability of the

petitioner to articulate his claims pro se in light of the complexity of the legal issues involved.

Neither of these factors is dispositive and both must be reviewed together before reaching a

decision. Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th

Cir. 1986)); see also Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Plaintiff bears the

Office of the

Attorney General
100 N. Carson St.
Carson City, NV

89701-4717

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Case 3:11-cv-00047-LRH-WGC Document 38 Filed 05/09/13 Page 4 of 5

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burden of proving exceptional circumstances. Id. The difficulties which any litigant would

have in proceeding pro se do not by themselves qualify as "exceptional circumstances."

Wood, 900 F.2d at 1335-1336; Wilborn, 789 F.2d at 1331. In Terrell, the court found that the

plaintiff “demonstrated sufficient writing ability and legal knowledge to articulate his claim,”

that the case did not involve substantial complexity, and that plaintiff had not demonstrated

that it was likely he would succeed on the merits. Terrell, 935 F.2d at 1017.



Here, Plaintiff fails to show the existence of any exceptional circumstances which

would warrant appointment of counsel by this Court in this matter. Counsel would not be

useful in preventing the alleged retaliation Plaintiff claims in his Motion (#37). The Motion

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offers no other discussion indicating that the legal issues have grown increasingly complex or

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that he is more likely to succeed on the merits.



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Accordingly, Plaintiff’s Motion, interpreted either as a request for injunctive relief or a

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request for the appointment of counsel should be DENIED.

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DATED this 9th day of May, 2013.

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Office of the

Attorney General
100 N. Carson St.
Carson City, NV

89701-4717

CATHERINE CORTEZ MASTO
Attorney General



By:








BRIAN W. HAGEN
Deputy Attorney General
Bureau of Litigation
Public Safety Division

Attorneys for Defendants





















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Case 3:11-cv-00047-LRH-WGC Document 38 Filed 05/09/13 Page 5 of 5

CERTIFICATE OF SERVICE



I certify that I am an employee of the Office of the Attorney General, State of Nevada,

and that on this 9th day of May, 2013, I caused to be served a copy of the foregoing

RESPONSE

TO

PLAINTIFF’S MOTION

TO

STOP RETALIATION AND

RECONSIDERATION OF APPOINTMENT OF COUNSEL, by mailing a true copy to the

following:



JASON M. JONES #70541
HIGH DESERT STATE PRISON
P.O. BOX 650
INDIAN SPRINGS, NV 89070








































ROBIN R. SUMMERS











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Office of the

Attorney General
100 N. Carson St.
Carson City, NV

89701-4717

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