3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 BRYAN DRYDEN, Case No. 3:25-cv-00059-MMD-CLB
7 Plaintiff, ORDER v. 8
9 HEATHER BACCA-COOK, et al.,
10 Defendants.
11 I. SUMMARY 12 Pro se Plaintiff Bryan Dryden, who is incarcerated in the custody of the Nevada 13 Department of Corrections (“NDOC”), filed this civil rights action under 42 U.S.C. § 1983. 14 The Court screened Plaintiff’s first amended complaint (“FAC”), found that he states 15 colorable First Amendment retaliation claims against four Defendants, and stayed the 16 case to allow the parties an opportunity to settle their dispute with the assistance of a 17 court-appointed mediator. (ECF No. 9 (“Screening Order”).) Mediation is yet to be set. 18 Plaintiff has now submitted several filings, including: a motion for leave to file a 19 supplemental complaint (ECF No. 11 at 1-3) with a proposed supplemental complaint 20 (ECF No. 10; ECF No. 11 at 4-8); a request for production (ECF No. 13); two motions for 21 injunctive relief (ECF Nos. 14, 15); a request for an “order of exculpation” (ECF No. 16); 22 and a motion for the appointment of counsel (ECF No. 12). 23 As explained below, the Court denies these motions and requests, and this case 24 will proceed to mediation based only on the colorable claims found in the Court’s 25 Screening Order. If Plaintiff would like to pursue any claims or requests for relief arising 26 from the proposed supplemental complaint, he is free to do so by filing a separate 27 complaint, which will initiate a new case and be given a new case number. 28 2 When the Court screened the FAC, it found that Plaintiff states colorable retaliation 3 claims against four Defendants based on alleged events that occurred at High Desert 4 State Prison (“HDSP”) in late 2022 through early 2023. (ECF No. 9 at 7–8.) Specifically, 5 the Court found that Plaintiff plausibly alleged that law library supervisor Heather Bacca- 6 Cook and correctional officers (“CO”) Torrez, Ford, and Alvarez obstructed his access to 7 the law library and threatened an inmate who was helping Plaintiff with his legal work 8 because Plaintiff had filed lawsuits and grievances. (Id.) 9 In the proposed supplemental complaint, Plaintiff seeks to add 16 new Defendants 10 and 10 new claims based on alleged events that occurred at Ely State Prison (“ESP”) in 11 mid-2025 through early 2026. (ECF No. 10 at 1-20; ECF No. 11 at 4-8.) The proposed 12 Defendants include ESP COs, ESP wardens, ESP caseworkers, an ESP mental health 13 provider, the NDOC director, and the Nevada governor. (ECF No. 10 at 2-5.) And the 14 proposed claims include claims of retaliation, lack of basic necessities, property 15 deprivation, conspiracy to commit murder, intimidation of a federal witness, negligence, 16 and intentional infliction of emotional distress. (ECF No. 10 at 6–20; ECF No. 11 at 4-8.) 17 Pursuant to Rule 15(d), “[o]n motion and reasonable notice, the court may, on just 18 terms, permit a party to serve a supplemental pleading setting out any transaction, 19 occurrence, or event that happened after the date of the pleading to be supplemented.” 20 The Supreme Court has held that Rule 15(d) “plainly permits supplemental amendments 21 to cover events happening after suit, and it follows, of course, that persons participating 22 in these new events may be added if necessary. Such amendments are well within the 23 basic aim of the rules to make pleadings a means to achieve an orderly and fair 24 administration of justice.” Griffin v. Cnty. Sch. Bd. of Prince Edward Cnty., 377 U.S. 218, 25 227 (1964). “While leave to permit supplemental pleading is favored, . . . it cannot be used 26 to introduce a separate, distinct and new cause of action.” Planned Parenthood of S. 27 Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (citations and quotation marks 28 omitted). 2 No. 11 at 1-3.) The claims in this proposed pleading are based on alleged events that 3 occurred at ESP in mid-2025 through 2026, and they are not related to the claims in the 4 FAC, which are based on alleged events that occurred at HDSP in late 2022 through early 5 2023. The Court therefore finds that the proposed supplemental complaint is an attempt 6 to introduce a separate, distinct, and new cause of action. 7 If Plaintiff would like to pursue the claims in the proposed supplemental complaint, 8 he may file a separate original complaint, which will initiate a new case and be given a 9 new case number. Because the alleged events in the proposed supplemental complaint 10 occurred in mid-2025 through 2026, this outcome does not present any barriers to Plaintiff 11 under the applicable two-year statute of limitations. See Rosales-Martinez v. Palmer, 753 12 F.3d 890, 895 (9th Cir. 2014) (citations omitted) (explaining that the statute of limitations 13 for § 1983 claims in Nevada is two years). 14 III. REQUEST FOR PRODUCTION (ECF NO. 13) 15 Plaintiff’s request for production is related to the proposed supplemental complaint. 16 (ECF No. 13.) Because the Court has denied Plaintiff’s motion to file the supplemental 17 complaint in this case, his request for production is denied as moot. 18 IV. REQUESTS FOR INJUNCTIVE RELIEF (ECF NOS. 14, 15, 16) 19 Plaintiff filed motions for a temporary restraining order (ECF No. 14) and a 20 preliminary injunction (ECF No. 15) based on the allegations in the proposed 21 supplemental complaint. The requested relief includes protection from immediate harm 22 or death by COs and inmates at ESP, including placement in a single cell. (ECF No. 14 23 at 9; ECF No. 15 at 14.) Plaintiff also filed a request for an “order of exculpation” seeking 24 immediate release from prison based on his argument that the state laws under which he 25 was convicted are illegal and he is actually innocent. (ECF No. 16.) 26 Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, 27 never awarded as of right.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). “A 28 plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the 2 the balance of equities tips in his favor, and that an injunction is in the public interest.” 3 Am. Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 4 Winter, 555 U.S. at 20). Furthermore, under the Prison Litigation Reform Act, preliminary 5 injunctive relief must be “narrowly drawn,” “extend no further than necessary to correct 6 the harm,” and be “the least intrusive means necessary to correct the harm.” 18 U.S.C. § 7 3626(a)(2). 8 The Court denies Plaintiff’s motions for injunctive relief for two reasons. First, these 9 motions are based on allegations in the proposed supplemental complaint, which 10 occurred at ESP in mid-2025 through early 2026 and are unrelated to the allegations in 11 the operative FAC. And the Ninth Circuit has held that “there must be a relationship 12 between the injury claimed in the motion for injunctive relief and the conduct asserted in 13 the underlying complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 14 631, 636 (9th Cir. 2015). So Plaintiff’s motions for injunctive relief are not viable in this 15 case. Second, Plaintiff’s request for immediate release cannot be granted in this § 1983 16 case because “a prisoner in state custody cannot use a § 1983 action to challenge the 17 fact or duration of his confinement.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 BRYAN DRYDEN, Case No. 3:25-cv-00059-MMD-CLB
7 Plaintiff, ORDER v. 8
9 HEATHER BACCA-COOK, et al.,
10 Defendants.
11 I. SUMMARY 12 Pro se Plaintiff Bryan Dryden, who is incarcerated in the custody of the Nevada 13 Department of Corrections (“NDOC”), filed this civil rights action under 42 U.S.C. § 1983. 14 The Court screened Plaintiff’s first amended complaint (“FAC”), found that he states 15 colorable First Amendment retaliation claims against four Defendants, and stayed the 16 case to allow the parties an opportunity to settle their dispute with the assistance of a 17 court-appointed mediator. (ECF No. 9 (“Screening Order”).) Mediation is yet to be set. 18 Plaintiff has now submitted several filings, including: a motion for leave to file a 19 supplemental complaint (ECF No. 11 at 1-3) with a proposed supplemental complaint 20 (ECF No. 10; ECF No. 11 at 4-8); a request for production (ECF No. 13); two motions for 21 injunctive relief (ECF Nos. 14, 15); a request for an “order of exculpation” (ECF No. 16); 22 and a motion for the appointment of counsel (ECF No. 12). 23 As explained below, the Court denies these motions and requests, and this case 24 will proceed to mediation based only on the colorable claims found in the Court’s 25 Screening Order. If Plaintiff would like to pursue any claims or requests for relief arising 26 from the proposed supplemental complaint, he is free to do so by filing a separate 27 complaint, which will initiate a new case and be given a new case number. 28 2 When the Court screened the FAC, it found that Plaintiff states colorable retaliation 3 claims against four Defendants based on alleged events that occurred at High Desert 4 State Prison (“HDSP”) in late 2022 through early 2023. (ECF No. 9 at 7–8.) Specifically, 5 the Court found that Plaintiff plausibly alleged that law library supervisor Heather Bacca- 6 Cook and correctional officers (“CO”) Torrez, Ford, and Alvarez obstructed his access to 7 the law library and threatened an inmate who was helping Plaintiff with his legal work 8 because Plaintiff had filed lawsuits and grievances. (Id.) 9 In the proposed supplemental complaint, Plaintiff seeks to add 16 new Defendants 10 and 10 new claims based on alleged events that occurred at Ely State Prison (“ESP”) in 11 mid-2025 through early 2026. (ECF No. 10 at 1-20; ECF No. 11 at 4-8.) The proposed 12 Defendants include ESP COs, ESP wardens, ESP caseworkers, an ESP mental health 13 provider, the NDOC director, and the Nevada governor. (ECF No. 10 at 2-5.) And the 14 proposed claims include claims of retaliation, lack of basic necessities, property 15 deprivation, conspiracy to commit murder, intimidation of a federal witness, negligence, 16 and intentional infliction of emotional distress. (ECF No. 10 at 6–20; ECF No. 11 at 4-8.) 17 Pursuant to Rule 15(d), “[o]n motion and reasonable notice, the court may, on just 18 terms, permit a party to serve a supplemental pleading setting out any transaction, 19 occurrence, or event that happened after the date of the pleading to be supplemented.” 20 The Supreme Court has held that Rule 15(d) “plainly permits supplemental amendments 21 to cover events happening after suit, and it follows, of course, that persons participating 22 in these new events may be added if necessary. Such amendments are well within the 23 basic aim of the rules to make pleadings a means to achieve an orderly and fair 24 administration of justice.” Griffin v. Cnty. Sch. Bd. of Prince Edward Cnty., 377 U.S. 218, 25 227 (1964). “While leave to permit supplemental pleading is favored, . . . it cannot be used 26 to introduce a separate, distinct and new cause of action.” Planned Parenthood of S. 27 Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (citations and quotation marks 28 omitted). 2 No. 11 at 1-3.) The claims in this proposed pleading are based on alleged events that 3 occurred at ESP in mid-2025 through 2026, and they are not related to the claims in the 4 FAC, which are based on alleged events that occurred at HDSP in late 2022 through early 5 2023. The Court therefore finds that the proposed supplemental complaint is an attempt 6 to introduce a separate, distinct, and new cause of action. 7 If Plaintiff would like to pursue the claims in the proposed supplemental complaint, 8 he may file a separate original complaint, which will initiate a new case and be given a 9 new case number. Because the alleged events in the proposed supplemental complaint 10 occurred in mid-2025 through 2026, this outcome does not present any barriers to Plaintiff 11 under the applicable two-year statute of limitations. See Rosales-Martinez v. Palmer, 753 12 F.3d 890, 895 (9th Cir. 2014) (citations omitted) (explaining that the statute of limitations 13 for § 1983 claims in Nevada is two years). 14 III. REQUEST FOR PRODUCTION (ECF NO. 13) 15 Plaintiff’s request for production is related to the proposed supplemental complaint. 16 (ECF No. 13.) Because the Court has denied Plaintiff’s motion to file the supplemental 17 complaint in this case, his request for production is denied as moot. 18 IV. REQUESTS FOR INJUNCTIVE RELIEF (ECF NOS. 14, 15, 16) 19 Plaintiff filed motions for a temporary restraining order (ECF No. 14) and a 20 preliminary injunction (ECF No. 15) based on the allegations in the proposed 21 supplemental complaint. The requested relief includes protection from immediate harm 22 or death by COs and inmates at ESP, including placement in a single cell. (ECF No. 14 23 at 9; ECF No. 15 at 14.) Plaintiff also filed a request for an “order of exculpation” seeking 24 immediate release from prison based on his argument that the state laws under which he 25 was convicted are illegal and he is actually innocent. (ECF No. 16.) 26 Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, 27 never awarded as of right.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 24 (2008). “A 28 plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the 2 the balance of equities tips in his favor, and that an injunction is in the public interest.” 3 Am. Trucking Ass’ns, Inc. v. City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting 4 Winter, 555 U.S. at 20). Furthermore, under the Prison Litigation Reform Act, preliminary 5 injunctive relief must be “narrowly drawn,” “extend no further than necessary to correct 6 the harm,” and be “the least intrusive means necessary to correct the harm.” 18 U.S.C. § 7 3626(a)(2). 8 The Court denies Plaintiff’s motions for injunctive relief for two reasons. First, these 9 motions are based on allegations in the proposed supplemental complaint, which 10 occurred at ESP in mid-2025 through early 2026 and are unrelated to the allegations in 11 the operative FAC. And the Ninth Circuit has held that “there must be a relationship 12 between the injury claimed in the motion for injunctive relief and the conduct asserted in 13 the underlying complaint.” Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 14 631, 636 (9th Cir. 2015). So Plaintiff’s motions for injunctive relief are not viable in this 15 case. Second, Plaintiff’s request for immediate release cannot be granted in this § 1983 16 case because “a prisoner in state custody cannot use a § 1983 action to challenge the 17 fact or duration of his confinement. He must seek federal habeas corpus relief (or 18 appropriate state relief) instead.” See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) 19 (citations and quotation marks omitted). Therefore, Plaintiff’s motions for injunctive relief 20 (ECF Nos. 14, 15) and request of an “order of exculpation” (ECF No. 16) are denied 21 without prejudice. 22 V. MOTION FOR APPOINTMENT OF COUNSEL (ECF NO. 12) 23 Plaintiff requests the appointment of counsel of his choosing because the legal 24 issues in this case are complex, he suffers from health issues, and prison officials wish 25 him harm due to his lawsuits, interfere with his files, and restrict the amount of mail he 26 sends out. (ECF No. 12 at 2-3.) 27 A litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 28 1983 civil rights cases. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The 2 may request an attorney to represent any person unable to afford counsel.” However, the 3 Court will appoint counsel for indigent civil litigants only in “exceptional circumstances.” 4 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). “When determining whether 5 ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of success on the 6 merits as well as the ability of the petitioner to articulate his claims pro se in light of the 7 complexity of the legal issues involved.” Id. (quoting Weygandt v. Look, 718 F.2d 952, 8 954 (9th Cir. 1983)). “Neither of these considerations is dispositive and instead must be 9 viewed together.” Id. (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). 10 As an initial matter, the Court notes that plaintiffs who are appointed counsel are 11 not permitted to choose their preferred attorney. See Mallard v. U.S. Dist. Court, 490 U.S. 12 296, 310 (1989) (holding that federal courts do not have authority “to make coercive 13 appointments of counsel”). Moreover, Plaintiff has demonstrated an ability to articulate 14 his claims, and the Court does not otherwise find exceptional circumstances to warrant 15 the appointment of counsel. The Court therefore denies Plaintiff’s motion for appointment 16 of counsel without prejudice. 17 VI. CONCLUSION 18 It is therefore ordered that Plaintiff’s motion for leave to file a supplemental 19 complaint (ECF No. 11 at 1-3) is denied. 20 It is further ordered that the operative complaint is still the FAC (ECF No. 8). 21 It is further ordered that Plaintiff may pursue the claims in the proposed 22 supplemental complaint (ECF No. 10; ECF No. 11 at 4-8) by filing a separate original 23 complaint. If Plaintiff chooses to do so, this will initiate a new case and be given a new 24 case number. 25 It is further ordered that Plaintiff’s request for production (ECF No. 13) is denied as 26 moot. 27 28 1 It is further ordered that Plaintiff's motions for injunctive relief (ECF Nos. 14, 15), 2 || request for an “order of exculpation” (ECF No. 16), and motion for the appointment of 3 || counsel (ECF No. 12) are denied without prejudice. 4 It is further ordered that this case will proceed as provided in the Court’s screening 5 || order (ECF No. 9). 6 DATED THIS 18" Day of February 2026. 7
MIRANDA M. DU 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28