Hazel v. Russell

Opinion

DISTRICT OF NEVADA

* * * TERRANCE HAZEL, Case No. 3:20-cv-00428-LRH-CLB

Petitioner, ORDER

v. RUSSEL, et al., Respondents. On August 19, 2020, this court dismissed Terrance Hazel’s pro se habeas corpus petition for failure to state a claim for which habeas corpus relief may be granted (ECF No. 3). Judgment was entered (ECF No. 4). Almost three months after this case was closed, Hazel has filed a motion for reconsideration and what he has styled as an emergency motion for a virtual hearing (ECF Nos. 5, 6). As discussed below, the motions are denied. Rule 60(b) entitles the moving party to relief from judgment on several grounds, including the catch-all category “any other reason justifying relief from the operation of the judgment.” Fed.R.Civ.P. 60(b)(6). A motion under subsections (b)(4-6) must be brought “within a reasonable time.” Fed.R.Civ.P. 60(c)(1). Relief under subsection (b)(6) requires a showing of “extraordinary circumstances.” Gonzalez v. Crosby, 545 U.S. 524, 535 (2005). Inmates in state custody pursuant to a state-court judgment who challenge their U.S.C. § 2254 petition for writ of federal habeas corpus. Further, “relief is available to a prisoner under the federal habeas statute only if success on the claim would ‘necessarily spell speedier release’ from custody.” Nettles v. Grounds, 788 F.3d 992, 1001 (9th Cir. 2015); 28 U.S.C. § 2254. In his petition, Hazel claims that Northern Nevada Correctional Center personnel are not complying with COVID-19 pandemic safety protocols in deliberate indifference to serious medical and safety needs (ECF No. 1, pp. 3-4). As the court stated in its order dismissing the petition, such a claim implicates petitioner’s Eighth Amendment rights under 28 U.S.C. § 1983, not habeas corpus. He also seeks to assert a claim under the Americans with Disabilities Act. Id. at 7-8. In his motion for reconsideration Hazel urges—correctly—that rates of COVID-19 infection in Nevada prisons and jails continue to rise precipitously.1 He argues that he is particularly vulnerable to falling seriously ill if he contracts COVID-19 due to his age, race, and mental and physical disabilities. Without question it is critical that NDOC institutions comply with their stated COVID-19 safety protocols. However, as this court has stated in other cases, in this district, Hazel must file a civil rights complaint if he wishes to pursue these claims.2 Hazel has not presented a basis for the court to grant Rule 60(b) relief. Accordingly, the motion for reconsideration is denied. IT IS THEREFORE ORDERED that petitioner’s motion for reconsideration (ECF No. 5) and emergency motion for virtual hearing (ECF No. 6) are both DENIED. IT IS FURTHER ORDERED that a certificate of appealability is denied. IT IS FURTHER ORDERED that the Clerk send to petitioner one copy each of the prisoner application to proceed in forma pauperis and 42 U.S.C. § 1983 complaint form and instructions, along with the papers he filed in this action.

1See, e.g., https://thenevadaindependent.com/article/with-nevada-prison-covid-19-cases-quadrupling-in- two-weeks-families-call-for-early-releases. 1 IT IS FURTHER ORDERED that the Clerk resend to petitioner one copy of this court’s order dated August 19, 2020 at ECF No. 3. DATED this 9th day of December, 2020. . Mhihee_ LA . HICKS ; UNITED STATES DISTRICT JUDGE