Case 3:18-cv-00570-RCJ-CBC Document 10 Filed 12/14/18 Page 1 of 25

1 ADAM PAUL LAXALT

Nevada Attorney General
2 Jordan T. Smith (Bar No. 12097)
Deputy Solicitor General
3 D. Randall Gilmer (Bar No. 14001)
Chief Deputy Attorney General
4 State of Nevada
Office of the Attorney General
5 555 East Washington Avenue, Suite 3900
Las Vegas, NV 89101
6 702-486-3427 (phone)
702-486-3773 (fax)
7 drgilmer@ag.nv.gov
jsmith@ag.ng.gov
8
Attorneys for Defendants State of Nevada,
9 Nevada Department of Corrections, and
Director Dzurenda
10

11 UNITED STATES DISTRICT COURT

12 DISTRICT OF NEVADA

13 SCOTT RAYMOND DOZIER, Case No. 3:18-cv-00570-RJC-CBC

14 Plaintiff, DEFENDANTS’ STATE OF NEVADA,
NEVADA DEPARTMENT OF
15 vs. CORRECTIONS, AND JAMES
DZURENDA’S RESPONSE IN
16 JAMES DZURENDA, Director et al., OPPOSITION TO PLAINTIFF’S
MOTION FOR TEMPORARY
17 Defendants. RESTRAINING ORDER WITH
NOTICE AND PRELIMINARY
18 INJUNCTION (ECF No. 6)
19 ORAL ARGUMENT REQUESTED
20 Defendants, the State of Nevada, the Nevada Department of Corrections (NDOC), and
21 James Dzurenda, in his official capacity as Director of the NDOC, hereby provide this special
22 and limited appearance1 in opposition to Plaintiff’s Motion for Temporary Restraining Order
23 With Notice and Preliminary Injunction (TRO Motion) (ECF No. 6).
24

25
1
Plaintiff has yet to effectuate service on any of the Defendants. Plaintiff’s counsel
26 emailed a courtesy copy (without exhibits) to the Attorney General’s Office on Friday,
December 7, 2018 and a mailed copy to the Carson City Office of the Attorney General, which
27 was received on Monday, December 10, 2018. The Defendants therefore are filing this
Response as a Limited Special Appearance for purposes of responding to the TRO Motion.
28 Defendants reserve the right to raise any and all defenses based on lack of service
contemplated under the Federal Rules of Civil Procedure.

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1 I. INTRODUCTION
2 In state court proceedings, Plaintiff Scott Dozier (Dozier) has voluntarily agreed to
3 waive his habeas proceedings and has submitted to his lawful capital sentence. Since 2017,
4 the Nevada Department of Corrections has attempted to carry out its statutory mandate to
5 effectuate Dozier’s now-accepted sentence through lethal injection. However, Dozier’s current
6 counsel, the Office of the Federal Public Defender (FPD) (and other anti-death penalty groups)
7 have thwarted the professed wishes of its own client by filing court actions that have prevented
8 Dozier’s execution. For example, the Nevada Supreme Court recognized that the “FPD’s
9 actions in this case seem to be at odds with [Dozier’s] directive ….”2 Because of the delays
10 caused by the FPD and others, Dozier has repeatedly informed NDOC officials and staff that
11 he will take matters into his own hands and end his own life if the State is unable to carry out
12 the execution in a timely manner. Dozier has also obtained assistance from outside third-
13 parties to take steps to commit suicide. These measures include:
14 (1) his sister’s attempt to provide him with a detailed anatomy textbook with
15 information specifying the best possible way to ensure death by cutting the jugular vein
16 or major arteries in his neck;
17 (2) obtaining razor blades that could be used to make the necessary cuts;
18 (3) affirmatively attempting to have potent drugs smuggled into the
19 institution through the mail; and
20 (4) evidence that an inmate appeared willing to assist him in obtaining the
21 smuggled drugs.
22 In addition, Dozier previously acknowledged having suicidal thoughts after previous
23 adverse court rulings. Given these undisputed facts, the State had no choice but to take
24 appropriate precautions to ensure that Dozier was not a threat to himself. While these actions
25 were wholly appropriate, on November 2, 2018 they came to an end. Dozier was returned to
26 the Condemned Men’s Unit (CMU). At the present time, there is no reason to believe Dozier
27 will be returned to observation. But should he continue to make threats to end his life, or take
2 Nevada Dep’t of Corr. v. Eighth Jud. Dist. Ct., 417 P.3d 1117, 2018 WL 2272873, at *2
28
n.4 (Nev. 2018).

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1 steps that objectively appear as if he is attempting to carry out that threat, the State must be
2 able to place Dozier in an appropriate observational setting to protect him from himself. Any
3 ruling from this Court that prevents NDOC from protecting Dozier’s well-being, if needed, may
4 have the effect of facilitating Dozier’s suicide.
5 Accordingly, the TRO Motion must be denied.
6 Moreover, the Court should inquire into the FPD’s continued ability to represent Dozier
7 in this proceeding. It does not appear that the FPD has the authority—statutory or
8 otherwise—to bring these types of actions on behalf of prisoners.3 And even if the FPD does
9 have the authority, it is highly doubtful that the FPD should be allowed to proceed in this case
10 when it has made itself a witness to the underlying facts and, most significantly, its state court
11 delay tactics in 2017 have contributed to its own client’s alleged injuries.
12 II. STATEMENT OF RELEVANT FACTS
13 While Dozier has provided an interesting narrative as to the “facts” of Dozier’s
14 temporary placement on either suicide or observational watch, Dozier has not provided the
15 Court with a complete picture. He omits significant information which proves why the State
16 had no choice but to place Dozier on routine, temporary, and standard observation. The State
17 provides the Court with these glaring omissions here.
18 A. The November 2017 Events
19 After the FPD first obtained an order from the Eighth Judicial District Court delaying
20 Dozier’s execution, NDOC—in consultation with medical and mental health professionals4—
21 made a decision to place Dozier on a 48 hour “custody watch” in order “to ensure [Dozier] is
22 safe and secure in his cell in Unit 1B.”5 This decision was made based on Dozier’s previous
23
3 See 18 U.S.C. § 3006A; Guide to Judicial Policy, Vol. 7A, § 210.20.20 (failing to indicate
24
Congressional authority to represent an individual in a civil action bringing 42 U.S.C. § 1983
25 claims); Guide, § 210.20.50(c) which provides that “[p]risoners bringing civil rights actions
under 42 U.S.C. § 1983” are not “[c]ases or proceedings . . . covered by or compensable under
26 the CJA.”
4 See Ex. D, Declaration of Theresa Wickham at 1 APP 29 (¶¶ 6-7).

27 5 Email from Associate Warden (now Warden) Gittere, dated 11/9/17, Exhibit E, 1 APP
30; See TRO Motion at 2, citing Exhibit 7 (ECF No. 9). Unless otherwise indicated, Exhibit
28 numbers refer to exhibits filed by Plaintiff. Defendants will refer to attached exhibits herein
by letter for ease of reference. The public exhibits will all be contained in the first volume of

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1 attempt to end his life following a disappointing court loss in 2007,6 as well as Director
2 Dzurenda being aware that Dozier had informed NDOC employees “that he would commit
3 suicide if the execution was cancelled.”7 On this occasion, Dozier was not removed from his
4 cell, as the then-warden made the unusual decision to not require him to be moved to an
5 observation cell, but to be monitored on the cell block.8 Despite not being moved, NDOC mental
6 health staff were “very supportive” of the decision to observe Dozier and to conduct a “thorough
7 evaluation” of Dozier’s “mental health status.”9
8 Mental health evaluations were conducted on November 15 and 16, 2017.10 Because
9 mental health professionals concluded observation was no longer necessary, the custody hold
10 was removed and Dozier was free to go about his daily routine.
11 B. The July 2018 Events
12 Dozier’s execution was stayed for a second time on July 11, 2018 – mere hours before
13 the execution was scheduled to take place.11 Given Dozier’s previous threats to end his life if
14 the execution was stayed, immediate efforts were undertaken to ensure that Dozier was not a
15 danger to himself.12 As part of this process, Dozier was seen by mental health staff that day,
16 and was also evaluated by Dr. Ewing on July 12, 2018—less than 24 hours after being moved
17 for observation.13 She concluded at that time that “Dozier will remain on Suicide Watch until
18 further assessment is completed and Mr. Martin returns for additional evaluation.”14 Dr.
19 the appendix (1 APP) and the sealed exhibits will be in the second volume (2 APP). Preceding
zeros will not be included in the page number citation.
20 6 Patient Medical Record dated 7/17/18, referencing 12/2007 medical assessment noting
previous suicidal behavior), filed under seal as Exhibit, 2 APP 3; Mental Health Records, filed
21 under seal at Exhibit B, 2 APP 19, 24.
7 Email from Theresa Wickham of October 29, 2018, filed under seal at Exhibit C, 2
22
APP 27; Ex. D, 1 APP 29 (¶¶ 6-7).
8 Ex. E, 1 APP 30.
23
9 Ex. E, Email from Gittere to Warden Filson, dated 11/15/2017, 1 APP 31.
24 10 See Emails re: Mental Health Assessments for 11/2017, filed under seal as Exhibit
F, 2 APP 32–34; see also 2 APP 36-38.
25 11 See TRO Motion at 2 n. 2, citing Exhibit 32 (ECF No. 7-2).
12 Declaration of Director Dzurenda, Exhibit G, 1 APP 39–40 (¶¶ 5-7); Declaration of
26 Warden Gittere, Exhibit H, 1 APP 41-44 (¶ 6); Declaration of Deputy Director Wickham
Exhibit I, 1 APP 55-57 (¶ 6).
27 13 Ex. A, Patient Medical Records at 2 APP 1, 6; see also Progress Notes (under seal),

28 Exhibit L, 2 APP 99.

14 Id.; see also Dr. Ewing Decl., Exhibit BB, 1 APP 297-300 (¶¶ 6, 9, 11-13, 18).

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1 Ewing noted in her assessment on July 12, 2018 that while Dozier denied wanting to harm
2 himself, she and staff “must be sure clinically that he is not going to harm self and just
3 presenting one way and really wanting to do another,” and that therefore Dozier would
4 “remain on Suicide Watch until further notice and evaluation is completed.”15
5 Dozier’s medical records from the July observation make an additional reference to
6 Dozier’s verbal threats about harming himself. Specifically, Ms. Clay’s follow up note of July
7 16, 2018 stated “I/M Dozier was placed in the suicide watch cell in the infirmary due to his
8 execution being put off and I/M making a remark about going back to his cell and taking
9 a bunch of pills.”16
10 On July 13, 2018, Dozier was again assessed by mental health staff. At that time, there
11 was a clinical disagreement as to whether he could safely be moved to an observation cell, and
12 therefore it was decided by the mental health staff that he would remain on Suicide Watch
13 over the weekend “per Dr. Ewing’s recommendation.”17 It was also decided that he would be
14 re-evaluated on Monday.18
15 Following mental health checks on July 16, 2018, the mental health team concluded
16 Dozier could be moved “to a mental health observation cell for continued watch with Dr.
17 Woods, G. Martin, and AW Gittere.”19 The next day, on July 17, 2018, Dozier was “returned
18 back to his original unit.”20 Dozier’s counsel was made aware of this decision by email the same
19 day.21 The medical notations made contemporaneously on that date documented that Dozier
20 had been “eating, sleeping, and showering normally,” had been in contact with his family and
21 attorney by phone, was “in good spirits,” and was “joking with staff.”22
22
15 Id.; see also July Emails re: Mental Health at Exhibit J (under seal), 2 APP 58–72;
23
Exhibit L, 2 APP 99-101.
16 Ex. A at 2 APP 2 (emphasis added); see also Ex. L, 2 APP 100.
24
17 Ex. J, Email Chain Between Gittere, Dr. Ewing and Gregory Martin, 2 APP 59–68,
25 specifically 2 APP 68; see also Ex. BB at 1 APP 297-298 and Declarations of Clay (Ex. DD)
and Martin (Ex. EE), 1 APP 305-306, 1 APP 307-309.
26 18 Ex. J, Emails Between Gittere, Dr. Ewing and Gregory Martin, 2 APP 59–68.
19 Ex. A at 2 APP 2.
27 20 Id. at 4.
21 See Email to Ericsson from Gittere, dated July 17, 2018, Exhibit K, 1 APP 90.
28
22 Ex. A, 2 APP 4; see also Ex. L at 2 APP 100 and 2 APP 102-105.

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1 C. Dozier, His Family, and His Friends Take Troubling Steps to Facilitate
Suicide
2

3 1. Dozier’s Attempt to Obtain Dangerous Drugs

4 On September 21, 2018—while Dozier was housed in his normal unit—NDOC staff
5 discovered a plot by Dozier to “obtain drugs in a highly concentrated form dropped onto a page
6 of a letter through the mail.”23 Dozier not only attempted to conspire with an individual who
7 was not incarcerated, but also conspired with a fellow inmate and friend from his unit, Inmate
8 Hall.24 As detailed by Dozier in the confiscated letter:
9 Here’s the deal – write a short letter to Bryan Hall – 79143 of
whatever – list of bands, whatever . . . & at the end of you sign off
10
[Image of Heart]
11
Love
12
[name] have the heart encompass where you put the drops – I’d
13 like 4 to 6 if feasible – and probably better if you use a little
thicker paper – or . . . you could put a few separate drops –
14 and surround each with a heart . . . but . . . you get the picture
–
15
on the return – put LUCY DIAMANTE –
16
that is actually the best way – like – all possible considerations –
17 as there is no test for it – and unless it’s the openly powdery or
crystalline – even if they refuse it, it just be “unknown”
18 substance/liquid – and they’ll issue a u/a [unauthorized] for it. . .
19 So . . . jump on it!! please …!![25]
20 The letter then signed off by providing examples of how to draw the hearts.26
21 Dozier not only raised the specter of suicide in this letter, but he also spoke of the plan
22 in a telephone call with the same individual. In the phone call, Dozier referenced the above
23 letter, confirmed the address to send the letter to, and instructed the listener to “secure some
24 of that f------ custom paper.”27
25

26 23 Notice of Charges, Disciplinary Form I, Exhibit M, 1 APP 108.

24 Id.
27 25 Letter from Dozier, dated 9/20/18, Exhibit N at 1 APP 119-124 (emphasis added).
26 Id.
28
27 Phone Call Log, 9/21/18, Exhibit O, 1 APP 127.

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1 Correspondence from Inmate Hall further confirms Dozier’s suicide plan. In a letter
2 dated October 10, 2018, Hall makes clear to another individual outside the prison that he is
3 friends with Dozier and that he was aware Dozier “probably [would] take things into his own
4 hands soon.”28
5 While the particular liquid drug Dozier was attempting to introduce is unknown,
6 Fentanyl is a likely possibility, as there “is a synthetic opiate [that] is not detected by
7 [NDOC’s] test kits” or in all of White Pine County.29
8 2. Dozier’s Sister’s Attempts to Provide Him with Medical Information
About How to Cut Himself and Commit Suicide
9

10 On October 3, 2018—the day Dozier was later moved to the observation cell—NDOC
11 staff intercepted two separate pieces of incoming mail from Dozier’s sister, and addressed to
12 Dozier.30 The mail did not contain a personal letter. Rather, it contained detailed information,
13 including hand-written diagraming of the cardiovascular system in general, and specifically,
14 explicit information regarding the veins and arteries of the neck, and noting that
15 [b]ecause of its superficial location (near the outside of the body), the
internal jugular vein is quite susceptible to injury, trauma, or
16 damage. It also lacks protection from strong structures, like bones
or cartilages. When blood flow to the vein is impeded or affected,
17 shock or death will ultimately occur.[31]
18 If this information was not enough to cause concern for Dozier’s well-being, his sister’s
19 letter informed Dozier that “[i]t takes about 2 minutes to bleed to death if the internal jugular
20 is cut . . . and the victim is in a lying down position.”32 The information also noted how to cut
21 both the external and internal jugular veins, which would probably cause death “in about 1
22 minute.”33
23 While Dozier did not receive this intercepted communication, he clearly knew that the
24 information was being sent as he discussed the information with his sister on the phone.34
28 Letter from Hall to Erin Mitchell, dated 10/10/18, Exhibit P, 1 APP 135.
25
29 Email from Gittere, dated September 21, 2018 Exhibit Q, 1 APP 136.
26 30 Letters to Dozier from Patzer, dated October 1, 2018, Exhibit R, 1 APP 139-151.
31 Id. at 151 (emphasis added).
27 32 Id. at 1 APP 147.
33 Id.
28
34 Ex. O, Phone Call Log, 10/5/18, at 1 APP 126.

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1 During that phone call, Dozier told his sister: “You know you can just send me the anatomy
2 stuff in a letter right?”35 She responded by telling him, “I will.”36 In the same phone
3 conversation he reiterated the fact that while he was looking forward to seeing her, he had
4 “mixed emotions” and that “he’s not looking forward to still being in prison.”37
5 Additionally, Dozier expressed frustration with his attorneys for not obtaining a TRO
6 that would have precluded Dr. Ewing from having contact with him.38
7 D. The October 2018 Mental Health Observations and Concerns
8 Given the information known as of October 3, 2018, especially the anatomical
9 information Dozier’s sister sent to him, Dozier was moved for a mental health observation on
10 the orders of Dr. Ewing.39 One of Dozier’s non-FPD attorneys (who has not filed an appearance
11 in this case) was informed of the move the same day. He was also told that the move was made
12 “[p]er our mental health provider’s orders, based upon concern for inmate Dozier’s
13 wellbeing.”40 Warden Gittere also specifically advised Dozier’s attorney that while he was
14 under observation, “he [was] not on suicide watch, but ha[d] been placed in an infirmary cell
15 to be observed and assessed for the next few days to a week.”41 The observation cell, located in
16 the infirmary of Unit 9, Cell A-16-A,42 contrary to Dozier’s statements, is well-lit, with open
17 glass to see in and out of the cell.43 Even with the lights off, the observation cell is not “almost
18 total darkness” as alleged by Dozier.44 Dozier also had control over some of the lighting in the
19 cell.45
20

21
35
Id.
22 36
Id.
37 Id.
23 38 Id.
39 Emails re: October Mental Health Status (Email from Gittere to Dr. Ewing, dated
24
10/3/18), Exhibit S at 2 APP 152.
25 40 Email from Gittere to Attorney Tom Ericsson, Exhibit T at 1 APP 217.
41 Id.
26 42 Historical Bed Assignment, Exhibit U, 1 APP 234.
43 Photographs of Observation Cell, attachments to Ex. H at 1 APP 45-54.
27 44 Id. at 46 (depicting observation with lights off).
45 Id. at 54; see also all attached Declarations, 1 APP 29 (¶ 8), 43 (¶¶ 9–12) 56 (¶ 9), 299
28
(¶¶ 14-15), 306 (¶¶ 14-15), 309 (¶¶ 17-18).

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1 Dr. Ewing noted the importance of Dozier’s observation placement in two separate
2 emails to Warden Gittere on October 3 and October 4, 2018.46 Dr. Ewing also noted that she
3 would begin with mental health assessment testing for Dozier the next day, Friday, October
4 5, 2018.47
5 Prior to the assessment on October 5, 2018, the mental health team, the Director of
6 Nursing, and Warden Gittere met with Dozier on October 4, 2018.48 During that meeting,
7 Dozier was told why he was “brought to the infirmary, treatment plan, testing, counseling,”
8 and what medications may be needed.49 Dozier requested Vistaril – an anti-anxiety
9 medication.50 It was also observed by Ms. Clay that Dozier appeared to be agitated, that he
10 had a “cut/bump on the top of his head” that he did “not want to talk about,” and that it
11 appeared as if he had not been sleeping or under stress based on Dozier’s statement that “he
12 [was] going [through] a lot mentally due to the state not doing their job and executing
13 him like he has requested.”51
14 While omitted from the TRO Motion, on October 9, 2018, Dozier was able to speak on
15 the phone with his non-FPD attorney. Following the phone call, the attorney informed the
16 warden that Dozier seemed despondent, asked for special privileges regarding reading
17 materials for Dozier, and hoped that a “mental health professional [would] see him as soon as
18 possible.”52 Despite these requests and concerns, Dozier’s attorney also noted that the NDOC
19 was “dealing with a difficult situation with Mr. Dozier and [he] appreciate[d] all
20 [the] efforts to keep him safe and healthy.”53
21 As Dozier’s counsel had hoped, Dr. Ewing met with Dozier the same day—October 9,
22 2018.54 During that meeting and testing, Dozier informed Dr. Ewing that he was being held
23
46 Ex. S, 2 APP 152-182 (Emails between Gittere & Dr. Ewing of 10/3/18 & 10/4/18).
24 47 Id. at 2 APP 182-185.
48 Ex. A at 2 APP 7–8; Ex. S, 2 APP 154-161.
25
49 Ex. A at 2 APP 6; see also 2 APP 7–8; Ex. S, 2 APP 216A, 216B, 216C (records).
26 50 Id.
51 Id.
27 52 Email from Ericsson to Gittere, Ex T at 1 APP 226-227.
53 Id. (emphasis added).
28
54 Ex. A at 2 APP 9.

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1 against his will and that he wanted to leave the infirmary. Yet, he also admitted to her that
2 “he was going through a lot.”55 Dr. Ewing concluded that continued follow-up was necessary.56
3 The next day, on October 10, 2018 Dozier was again seen by Dr. Ewing.57 During that
4 meeting, Dozier was uncooperative and demanding.58 Dr. Ewing concluded that additional
5 follow-up was necessary, and also encouraged Dozier “to be more receptive toward MH [mental
6 health] in helping him return to a more stable stance.”59 Dr. Ewing further explained her
7 concerns regarding Dozier in an email updating Warden Gittere as to Dozier’s current
8 condition by stating that “[a]fter speaking with the rest of the team and completing her testing,
9 she believed “clinically, [that Dozier] should remain under mental health observation in the
10 infirmary.”60 She went on to opine that in her “clinical judgment [Dozier] is really covering up
11 his true plan and he is not being honest about his true need and goal to rid himself of staying
12 in prison the rest of his life. Therefore he is secretly seeking a[n] outlet to ‘end’ his problems,
13 worries, and stress that he and his family continues to go through with the past execution
14 efforts, etc.”61 She also specifically noted that the NDOC “cannot afford to lose a[n] inmate to
15 suicide” and that “it is clinically best to be safe than sorry.”62
16 Dr. Ewing’s medical conclusion was echoed by another member of the mental health
17 team, Mr. Martin.63 In an October 10 email, Mr. Martin concurred with Dr. Ewing “and Ms.
18 Clay’s assessment that given outside information Mr. Dozier is at risk for a suicide
19 attempt and should be kept in the Infirmary under mental Health Observation.”64
20 Mr. Martin also expressed concern “over the possibility [] that there may be other people in his
21 unit [e.g., Inmate Hall] that may be willing to assist him in the ending of his life.”65
22
55 Id.
23 56 Id.
57 Id. at 2 APP 10.
24 58 Id.
59 Id.
25
60 Ex. S at 2 APP 187, Email from Dr. Ewing, 10/10/18.
26 61 Id.
62 Id.
27 63 Ex. S at 2 APP 188 Email from Mr. Martin, 10/10/18; see also 2 APP 189.
64 Id.
28
65 Id.

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1 Dozier was again seen by the mental health team on October 11, 2018.66 He was not
2 receptive to the information he was provided from the team, and seemed focused on blaming
3 Dr. Ewing (not custody staff or NDOC administration) “as being the cause behind all of his
4 problems.”67 Dr. Ewing responded to this concern by informing Dozier that he had to stop
5 presenting “to her in a[n] untruthful fashion and demanding that she provide and do for him
6 as he wants her too.”68 She also explained to him that he was not entitled to any different
7 treatment than any other inmate “on MH observation.”69 Dr. Ewing concluded that Dozier
8 should remain on observation “until further notice.”70
9 Dr. Ewing made the same determination again on October 17, 2018. On that date, she
10 noted that after meeting with Dozier once more on that day, it was her “clinical judgment that
11 he remain under MH observation” as he “is still presenting with concerns regarding hi[s]
12 mental state.”71
13 The suicide concerns regarding Dozier became more crystallized on the evening of
14 October 17, 2018 when Dozier provided to NDOC staff two razor blades and a set of nail
15 clippers he had in his possession.72 Mental health was immediately contacted, and they
16 “ordered continued mental health observation and mental health follow-up.”73 Warden Gittere
17 reached out to Dozier’s attorney the next day to inform him that the NDOC’s “concerns and
18 inmate Dozier’s status remained unchanged” given the events of the day before.74 Dozier’s
19 attorney was also informed on that day that “mental health staff ha[d] authorized [Dozier] to
20 have daily phone access and [that] there [was] no restrictions on the number or duration of
21 legal calls.”75 (Dozier’s call status was later temporarily changed by the mental health team).76
22 66 Ex. A at 2 APP 11.
67 Id.
23 68 Id.
69 Id.
24
70 Id.

25 71 Ex. A at 2 APP 12; see also Ex. S at 2 APP 191 (Email from Dr. Ewing of 10/17/18).
72 Razor Blade Investigation Documents, Exhibit V at 1 APP 235-256; Ex. M at 113-
26 114, Notice of Charges.
73 Ex. V at 1 APP 237.
27 74 Id. at 1 APP 238.
75 Id. at 1 APP 241.
28
76 Id. at 1 APP 247.

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1 On October 18, 2018, Mr. Martin noted that Dozier’s voluntarily admission and return
2 of the razor blades did not indicate a lack of self-harm, but “was again [an] attempt[] to
3 manipulate his way from the infirmary.”77
4 On October 24, 2018, Dr. Ewing noted that, due to Dozier’s obstinate refusal to assist
5 them in their efforts, there was no longer a clinical reason to hold him in the observation cell.78
6 This recommendation was echoed by Mr. Martin and Ms. Clay.79 However, a custody hold was
7 still recommended.80 Consistent with the mental health team’s judgment, Warden Gittere
8 ordered Dozier removed from observation, but that he was not to be returned to the CMU, but
9 to “max custody” administrative segregation, where he would “be interviewed daily by both
10 medical and mental health staff.”81 Dozier’s visitation rights were also restored.82
11 On November 2, 2018, after mental health confirmed to Warden Gittere that Dozier no
12 longer needed mental health care or monitoring, Dozier was returned to his regular housing
13 unit.83 However, Dozier has been informed that the NDOC, based on the ongoing investigation
14 regarding Dozier’s attempt to obtain drugs, is currently inspecting his incoming mail.84 The
15 United States Postal Service Inspector’s General Office is assisting in this investigation.85
16 E. Dozier Was Treated Consistent With NDOC Policy
17 The NDOC has promulgated two Administrative Regulations (ARs) regarding mental
18 health and suicide protocols. The first, AR 645, entitled “SUICIDE PREVENTION,” notes that
19 inmates “who pose a threat for self-injurious behavior should be assigned to the appropriate
20 housing for continuous observation, until seen by a mental health practitioner for evaluation
21

22
77 Ex. S at 2 APP 198.
23 78 Ex. S at 2 APP 203 (Email from Dr. Ewing of 10/24/18).
79 Id. at 2 APP 205.
24
80 Id.
25 81 Id. at 206 (Email from Gittere of 10/24/18); see also Ex. V at 1 APP 254 (redacted in
part).
26 82
1 APP 256.
83
Ex. S at 2 APP 210, Email from Gittere of 10/29/18; see also Ex. U, Historical Bed
27 Assignment.
84 Mail Processing Delay Memoranda, attached hereto as Exhibit W.
28
85 Id. at 1 APP 257.

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1 and treatment plan.”86 In addition to AR 645, AR 643, “MENTAL HEALTH SERVICES”

2 provides the general care that will be provided to mental health patients.87
3 Consistent with these two ARs, Ely State Prison (ESP) has established Operational
4 Procedure (OP) 643.88 Under OP 643, it is made clear that housing assignments will be made
5 in “joint consultation by the Warden or designee and the Mental Health Psychologist II or
6 designee prior to taking action.”89 However, it also provides for immediate emergency action
7 to be taken with consultation “as soon as possible but no later than the next business day.”90
8 Further, OP 643 provides that “[i]nmates may be placed in the infirmary under mental health
9 admission” when “[t]he individual represents a threat to self.”91 The procedure also provides
10 for both voluntary and involuntary placement, and that monthly meetings will take place with
11 the treatment team, with daily rounds being made.92
12 Finally, the policy considers the circumstances in which an inmate may be held in
13 seclusion, and what items the individual may have during those times:
14 7. Seclusion
15 a. Inmates may be placed into seclusion within the
infirmary at the order of the Psychologist II,[93]
16 institutional physician, physician’s assist or the
psychiatrist for evaluation purposes to determine the
17 necessity of admitting the inmate into the
18 infirmary for mental health evaluation.
19 b. Closing issue will consist of undershorts and blanket
only.
20
c. There will be no issuance of inmate property.
21
***
22 h. Inmates placed in the Infirmary under mental health
care will be evaluated within twenty-four (24) hours
23

24 86 AR 645, Exhibit X, 1 APP 260-264.

87 AR 643, Exhibit Y, 1 APP 265-267.
25
88 OP 643, Exhibit Z, 1 APP 268-275; see also OP 600, Exhibit AA, 1 APP 279-296.
26 89 Ex. Z at 1 APP 268.
90 Id.
27 91 Id. at 2 (§ 1(f)(i)).
92 Id. at 3 (§§ 2(e)&(F), 3(a)-(g)).
28
93 Dr. Ewing is a Psychologist II (see Exhibit BB at 1 APP 297 (¶ 1)).

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1 by a mental health professional with a

recommendation to the psychiatrist/designee.[94]
2

3 As noted above, Dozier’s placement met each and every one of these protocols.
4 III. ARGUMENT
5 A. Injunctive Relief Should Rarely Issue in Prison Condition Cases
6 Injunctive relief, whether temporary or permanent, is an “extraordinary remedy, never
7 awarded as of right.”95 In each case, courts “must balance the competing claims of injury and
8 must consider the effect on each party of the granting or withholding of the requested relief.”96
9 “A plaintiff seeking a preliminary injunction must establish that [1] he is likely to succeed on
10 the merits, that [2] he is likely to suffer irreparable harm in the absence of preliminary relief,
11 that [3] the balance of the equities tips in his favor, and that [4] an injunction is in the public
12 interest.”97
13 In addition, under the Prison Litigation Reform Act (PLRA), any TRO or preliminary
14 injunction
15 must be narrowly drawn, extend no further than necessary to
correct the harm the court finds requires preliminary relief, and be
16 the least intrusive means necessary to correct that harm. The court
shall give substantial weight to any adverse impact on public safety
17 or the operation of a criminal justice system caused by the
preliminary relief.[98]
18
The PLRA also requires any TRO or preliminary injunction to expire within 90 days
19
“unless the court makes the findings that” prospective relief is required and “is narrowly
20
drawn, extends no further than necessary to correct the violation of the Federal right, and is
21
the least intrusive means necessary to correct the violation of the Federal right.”99 A TRO or
22
preliminary injunction “may not ‘attempt to “micro manage”’ prison administration or order
23

24 94 Ex. Z at 1 APP 272-273 (§ 7).

95 Winter v. Natural Res. Defense Council, 555 U.S. 7, 24, 129 S. Ct. 365, 376–77, 172 L.
25 Ed. 2d 249 (2008).
96 Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 542, 107 S. Ct. 1396, 1402, 94
26 L. Ed. 2d 542 (1987).
97 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)
27 (quoting Winter, 555 U.S. at 20).
98 18 U.S.C. 3626(a)(2) (emphasis added).
28
99 18 U.S.C. 3636(a)(1).

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1 relief that would ‘require for its enforcement the continuous supervision by the federal court
2 over the conduct of” NDOC officials.100
3 As succinctly put by the Ninth Circuit in Peralta v. Dillard,101 “Congress has warned
4 that federal courts should rarely issue equitable relief in prison condition cases, and the
5 Supreme Court has often emphasized the same.”102
6 Dozier cannot meet this high bar.
7 B. Dozier’s TRO Motion is Moot
8 In Ind v. Colorado Dept. of Corrections,103 the Tenth Circuit noted an inmate’s challenge
9 to his placement in administrative segregation was mooted when he was “transfer[red] from
10 administrative segregation to the general population” and that therefore the court was
11 deprived of jurisdiction.”104 The Fourth Circuit has also held that a prisoner’s challenge to
12 certain policies he was subjected to while being housed in the Maximum Security Unit (MSU)
13 were moot after he was released from the MSU, noting that
courts… have held that the transfer of an inmate from a unit or
14 location where he [was] subject to the challenged policy, practice
or condition, to a different unit or location where he [was] no
15 longer subject to the challenged policy, practice, or conditions
moot[ed] his claims for injunctive and declaratory relief.[105]
16
Dozier was removed from observation on October 24, 2018. There is no imminent
17
execution pending—let alone any additional stays contemplated based on any future execution
18
that may be scheduled. And even if there was, there would have to be a belief that Dozier was
19
a danger to himself before he would be moved to observation or suicide watch. Any such move
20
would follow the dictates of AR 643, AR 645, and OP 643. Mental health professionals would
21
have to confirm the need for observation. This confluence of events is simply too speculative
22

23 100 Armstrong v. Brown, 768 F.3d 975, 983-84 (9th Cir. 2014) (internal citations
omitted).
24 101 744 F.3d 1076 (9th Cir. 2014).
102 Id. at 1099 (citing 18 U.S.C. § 3626(a)(1)(A)) (emphasis added).
25 103 801 F.3d 1209 (10th Cir. 2015).
104 Id. at 1211.
26
105 Incumaa v. Ozmint, 507 F.3d 281, 286–87 (4th Cir. 2007) (citing Abdul–Akbar v.

27 Watson, 4 F.3d 195, 206–07 (3d Cir. 1993) (removal from maximum security required court to
vacate injunctive relief as there was no meaningful relief available to inmate)); see also Taylor
28 v. Rogers, 781 F.2d 1047, 1048 n. 1, 1051 (4th Cir. 1986) (injunctive relief by one inmate was
moot because he was “returned to the general prison population”) (emphasis added).

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1 for a finding that Dozier’s allegations are not moot based on the potential for repetition, yet
2 evading review. This is especially true given that Dozier can simply reinstate his habeas
3 petition at any point in time. Therefore, the issues raised in the TRO Motion are moot.
4 C. The TRO Motion Does Not Meet the PLRA Narrowing Standards
5 In addition to being moot, the relief requested by Dozier violates the narrow relief that
6 should be rarely provided under the PLRA. Dozier’s prayer for relief seeks eight general and
7 broad areas of injunctive relief, all of which contain multiple subparts.106 All of the areas
8 requested would necessarily require this Court’s continued governance of the NDOC, its
9 policies, and its procedures. In short, it would require this Court’s “continuous supervision”
10 and micro-managing.107 It would also tie the hands of the NDOC when confronted with serious
11 safety and security risks involving Dozier.
12 As succinctly stated by the Southern District of New York in denying injunctive relief
13 in the context of mental health claims, “‘prison officials and medical officers have discretion in
14 treating prisoners, and Section 1983 is not designed to permit federal courts to interfere in the
15 ordinary medical practices of state prisons.’”108 Federal courts have cautioned “that
16 determinations of medical providers concerning the care and safety of patients are given a
17 ‘presumption of correctness.’”109 This standard has been applied by this Court as well.110
18 Furthermore, one of the requested relief elements in the TRO has nothing to do with
19 Dozier’s purported conditions of confinement but, instead, is a pet-project of the FPD’s Office.
20 Prayer for Relief (h) demands “in-person access to counsel … throughout the day on any
21
106 TRO Motion at 23–24.
22 107 Armstrong, supra.
108 Jackson v. Bederman, No. 12 Civ. 1338 (KPF), 2014 WL 2805242, * 19 n. 11
23 (S.D.N.Y., June 20, 2014) (quoting Sonds v. Barnabas Hosp. Correctional Health Services, 151
F. Supp.2d 303, 311-12 (S.D.N.Y. 2001) (citing Church v. Hegstrom, 416 F. 2d 449, 450-51 (2d
24 Cir. 1969)).
109 Sonds, supra (quoting Perez v. The Count of Westchester, 83 F. Supp.2d 435, 440
25
(S.D.N.Y. 2000) (citing Kulak v. City of New York, 88 F.3d 63, 77 (2d Cir. 1996)).
110 See D’Amico v. Bannister, No. 3:11-cv-00860-RCJ-VPC, 2013 WL 684786, * 5 (D.
26
Nev., Jan. 29, 2013) (citing Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986)) (“Prison
27 officials have wide discretion when determining the nature and extend of medical treatment
to provide to inmates.”); Stringer v. Baker, No. 3:11–CV–00711–RCJ–VPC, 2013 WL 4710398,
28 * 5 (D. Nev., Aug. 30, 2013) (same); Hewitt v. Luis, No. 3:11–cv–00598–RCJ–VPC, 2013 WL
4702266, * 5 (D. Nev., July 2, 2013) (same)).

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1 execution date …”111 These requests are unrelated to the events and occurrences at issue in
2 this case. This case is not the proper vehicle to assert what is essentially a method of execution
3 challenge. Granting such relief would violate the PLRA’s requirement that any injunctive
4 relief “be the least intrusive means necessary to correct that harm.”112 The harm alleged here
5 is Dozier’s observations status, not access to counsel on the day of the execution. This requested
6 relief is a transparent effort by the FPD to obtain greater relief than it is entitled to from this
7 Court. It is also legally wrong. Death row inmates do not have a First, Sixth, or Eighth
8 Amendment right to counsel “during the events leading up to and during the execution.”113
9 Thus, given the extremely narrow injunctive relief contemplated under the PLRA, and
10 the extraordinarily nature of the injunctive relief sought here—which would largely prevent
11 the NDOC from treating Dozier in a manner consistent with its ARs and OPs—the TRO
12 Motion should be denied.
13 C. The TRO Motion Also Fails Under General Injunctive Relief Standards
14 1. Dozier is Unlikely To Succeed on the Merits of His Claim
15 Dozier is not likely to succeed on the merits of any of his claims, including the Eighth
16 Amendment claim Dozier has raised in the TRO Motion.114 Dozier relies largely on Hoptowit
17 v. Ray,115 a Ninth Circuit case decided over thirty-five years ago and overruled in significant
18 parts by the Supreme Court in Sandin v. Conner.116 Nonetheless, Hoptowit is easily
19 distinguishable.
20 The Hoptowit court noted that “indefinite confinement” to segregation or protective
21 custody created “a threat to the mental health of inmates.”117 Here, Dozier was not indefinitely
22 confined to observation. Rather, he was continually monitored and confined for a specific time
23
111 TRO Motion at 24.
24 112 18 U.S.C. 3626(a)(2).
113 Whitaker v. Collier, 862 F.3d 490 (5th Cir. 2017), cert. denied, 138 S. Ct. 1172 (2018).
25 114 While the Complaint raises issues beyond the Eighth Amendment, Dozier has only
raised that issue when seeking the TRO, and therefore the State will only address that alleged
26 violation. See TRO Motion at 10 n. 4 (referencing only the Eighth Amendment for purposes of
the TRO Motion).
27 115 682 F.2d 1237 (9th Cir. 1982).
116 515 U.S. 472 (1995).
28
117 682 F.2d at 1257.

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1 and for specific and valid reasons—to ensure that he was not a threat to himself. Hoptowit also
2 noted that “[a]ccess to medical staff” was “inadequate.”118 Dozier was housed in the infirmary,
3 had daily interaction with mental health staff and others. In light of the facts presented above,
4 Dozier cannot credibly assert that he had inadequate access to medical staff. Further, unlike
5 the prisoners in Hoptowit, who had “no clear criteria by which they [could] work their way out
6 of segregation,119 Dozier was fully aware as to why he was under observation and consistently
7 instructed by Dr. Ewing and others to cooperate with the treatment plan and testing so they
8 could clear him to be returned to his unit.
9 Hoptowit reiterated that the Eighth Amendment requires “adequate food, clothing,
10 shelter, sanitation, medical care, and personal safety.”120 Dozier was provided each of these
11 things. Dozier was given adequate food, clothing, shelter, and sanitation consistent with his
12 observational status. The reason Dozier was placed in observation in October 2018 was
13 explicitly to ensure his personal safety by providing him with appropriate mental health care.
14 This is confirmed by medical records and statements of the mental health team.
15 Dozier’s and the FPD’s position is recklessly circular. They claim that being on
16 observation exacerbates Dozier’s already-suicidal desires stemming from the execution stays
17 so NDOC should be barred from putting him on observation while he nonetheless still wants
18 to kill himself in the general population. They attempt to have this Court preclude the State
19 from putting him in an observation cell to ensure his personal safety, despite the knowledge
20 that (1) Dozier informed various people he would kill himself if the State was unable to do so,
21 (2) attempted to introduce drugs into the prison that would have assisted in his plan, (3) tried
22 to obtain detailed medical information about the cardiovascular system in the neck and how
23 quickly he could “bleed out” by cutting veins or arteries in the neck, and (4) possessed razor
24 blades. Under these circumstances, NDOC could not sit idly by.121
25
118 Id.
26 119 Id.
120 Id. at 1258 (emphasis added).
27
121 See generally, Mombourquette ex rel. Mombourquette v. Amundson, 469 F. Supp.2d

28 624, 641-654 (W.D. Wis. 2007) (denying summary judgment when there were significant
indicators of suicide risk even when the plaintiff denied suicidal ideation).

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1 In addition, the evidence establishes Dozier’s counsel was able to speak to Dozier in
2 person and by phone on at least three occasions during the 21 day time frame, spoke with
3 family members (including the individual who attempted to provide him with information
4 about how to cut himself), and had daily interaction with mental health staff. While Dozier’s
5 counsel claims he was not allowed to speak to his lawyers except for a few occasions, Warden
6 Gittere informed his counsel that, for most of the time in observation, he had no restrictions
7 on legal phone calls. On at least one occasion, Dozier’s counsel recognized the difficulty ESP
8 faced in this situation, and noted his appreciation to the NDOC for providing for Dozier’s
9 safety. Further, the decision to provide or not provide phone calls was made by mental health
10 staff—and given that his family was attempting to help him learn how to cut his throat, it was
11 objectively reasonable to restrict certain phone calls. And finally, evidence demonstrates that
12 other prisoners within his unit were aware that Dozier wanted to end his life, and that at least
13 one of them appeared to be willing to assist.122
14 As stated long ago, “isolation alone . . . does not violate the Eighth Amendment.”123 This
15 is especially true when the isolation “is governed by stringent procedures.”124 Here, Dozier’s
16 observation was governed by appropriate ARs and OP 643. The evidence provided here
17 establishes the State complied with those procedures. Dozier is not likely to succeed on the
18 merits of his claim.125
19

20 122 Dozier has also made a factually incorrect statement in claiming that he was housed
in “almost total darkness.” TRO Motion at 12. That is simply not a true statement and wholly
21 belied by the record. He was housed in the infirmary, and on the same block of cells where, in
July, he claimed the exact opposite, e.g., that “the cell’s lights [were] on for 24 hours a day for
22 6 consecutive days.” Id. at 3; see also Ex. H at 1 APP 43 (¶¶ 9-12), 45-54.
123 Imprisoned Citizens Union v. Shapp, 461 F. Supp. 522, 528 (E.D. Pa. 1078) (citing
23 United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, 1202 (3d Cir. 1973)).
124 Id.
24
125 The State also notes Dozier’s failure to exhaust his administrative remedies. In this

25 regard, Dozier is not currently in observation and has made no allegation that he cannot now
(even assuming he could not then) avail himself of the constitutionally required administrative
26 grievance process before filing the instant lawsuit or TRO Motion. See Kerch v. Johnson, Civil
No. 5;17–cv108 MTTCHW, 2018 WL 2437577, * 4–5 (M.D. Ga., May 10, 2018) (prisoner’s
27 placement in mental health observation without writing supplies did not excuse his failure to
exhaust, as he could have do so following his removal). The State reserves its right to raise the
28 failure to exhaust in the future should the Complaint survive the PLRA mandated screening
process.

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1 Williams v. Gumbala,126 from the Western District of New York, is instructive. There,
2 the federal court noted there was no Eighth Amendment violation associated with placing a
3 prisoner “in a mental health observation unit” with only one mattress, and, as alleged, without
4 access to “family and friends, access to media review, . . . not allowed out of his cell as frequently
5 as he was,” and with food and water limitations.127 The prisoner was “not allowed outside [his
6 cell] as frequently . . . denied correspondence with family and friends, and could not view books
7 and magazines” for forty-nine (49) days.128 The court concluded that such conditions were not
8 “an atypical and significant hardship.”129 In reaching this result, the court noted that the
9 Northern District of New York found no constitutional violation when the plaintiff had been
10 held for 101 days in
11 a prison infirmary . . . where [he] was confined to his hospital room
for twenty-four hours a day, was not allowed to interact with other
12 inmates, was allowed only a hospital gown, socks and underclothes,
was subjected to cold temperatures, and was not allowed to possess
13 personal books, correspondence and family pictures.[130]
14 Williams specifically held that these factual allegations did not violate either the
15 Fourteenth Amendment or Eighth Amendment.131 Dozier’s similar allegations also fail to
16 demonstrate a likelihood of success on the merits of his claims.
17 2. Dozier Is Not Likely To Suffer Irreparable Harm
18 First, for obvious reasons, Dozier is not likely to suffer irreparable harm if NDOC is
19 allowed to place him on suicide watch or observation, if circumstances warrant. Quite the
20 opposite. It is likely that Dozier will suffer irreparable harm if NDOC is precluded from
21 changing his custodial status when he indicates self-harm and takes affirmative steps to
22 126 Williams v. Gumbula, 13-CV-RJA-MJR, 2018 WL 1801201, *2 (W.D.N.Y., March 5,
2018).
23 127
Id. at *2.
128
Id. at * 8-9.
24 129 Id. at * 9.
130 Id.
25
131 Id. at * 11–12 (citing additional cases with similar allegations where an Eighth

26 Amendment claim was rejected by the court); see also Baker v. German, Case No. 1:16-cv-
01873-AWI-SAB (PC), 2017 WL 1349741, * 4 (E.D. Cal., April 6, 2017) (no Eighth Amendment
27 violation for placing a plaintiff in a mental health observation cell that was “extremely filthy
and smelled of urine/feces”); Anderson v. County of Kern, 45 F.3d 1310 1314-15 (9th Cir. 1995)
28 (“administrative segregation, even in a single cell for twenty-three hours a day, is within the
terms of confinement ordinarily contemplated by a sentence”).

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1 accomplish that irreversible end. For instance, it is difficult to ensure that Dozier will not once
2 more enlist willing participants in his plan to end his life. If NDOC discovers such a scheme,
3 it must be allowed to place Dozier on observation again.
4 Second, Dozier has been removed from observation based on the mental health team’s
5 present determination that it is no longer warranted. Thus, to the extent he claims he suffered
6 from irreparable harm while in observation (ironically to make sure he did not kill himself),
7 there is no imminent reason to believe he will be placed back in observation at this time. The
8 so-called risk of harm from continued observation will arise only if Dozier again indicates that
9 he intends to inflict greater irreparable harm on himself.
10 Third, the ACLU’s decade old report has little relevance to the present conditions of
11 observation.132 Further, even Dr. Metzgher acknowledged that it was “possible that there was
12 an adequate mental health basis for initially placing him on . . . observation status.”133
13 Fourth, to the extent Dozier relies on the possibility of a future execution date, the
14 argument is wholly speculative. There is no present execution date and, as he and his counsel
15 are fully aware, he is a volunteer. Should he decide to continue to pursue his pending habeas
16 petition, any possible execution date would be put on indefinite hold. Likewise, Dozier
17 speculates that any new execution date would “subject [him] to renewed arbitrary
18 confinements and their attendant conditions.”134 However, Dozier’s allegations in this TRO
19 Motion are based on the State’s decisions after the execution was stayed, not for its decisions
20 made before or during the execution process.135
21 Fifth, and perhaps most telling, is the delay in seeking this TRO Motion. To be sure,
22 Dozier complains of being placed in some sort of observation on three different occasions – the
23 first over a year ago, the second more than four months ago, and the most recent one over two
24
132 See TRO Motion at 18 n. 5 and Exhibit 33, ECF No. 7–3.
25 133 Plaintiff’s Exhibit 29, ECF No. 4–33 (acknowledging his concern was based on
documentation and not an assertion that there was no need for mental health evaluation).
26 134 TRO Motion at 20.
135 Dozier mentions a passing concern regarding counsel contact. However, that is not
27
part of the Eighth Amendment argument raised in the TRO Motion. Further, Dozier’s access
28 to counsel on the day of the execution is described the Execution Manual. See Exhibit 18, ECF
No. 4–21 at § 109.05.K and L.

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1 months ago. Yet, at no time during any of those three previous observations did he or his
2 attorneys seek a TRO to remove him from observation. The lack of any attempt to end the
3 observation on those occasions, coupled with the delay in bringing the present TRO Motion,
4 clearly calls into question the alleged concerns associated with those previous observations or
5 any future observation that may be determined to be in the best interest of Dozier.
6 Accordingly, the State, not Dozier, is the entity that is likely to suffer irreparable harm
7 should the TRO Motion be granted. It would prevent the State from taking necessary
8 emergency measures to protect Dozier from himself. The State cannot be enjoined from taking
9 such important and potentially lifesaving measures. This is especially true given the “adverse
10 impact on public safety or the operation of a criminal justice system”136 that would result
11 should this Court award Dozier the broad, unnecessary relief he seeks in the TRO Motion.
12 Thus, this factor weighs in favor of denying the TRO Motion.
13 3. The Balance of the Hardships Tip Toward NDOC
14 The balance of hardships weighs in the State’s favor. The State must be allowed to
15 protect Dozier from himself even though he is subject to a lawful capital sentence. The State
16 must be able to use all appropriate policies and procedures in its efforts to ensure that safety.
17 An injunction from this Court will effectively tie NDOC’s hands and prevent it from shielding
18 Dozier from his own suicidal ideations.
19 Dozier’s assertions to the contrary are unpersuasive. He claims that because he was on
20 death row for nine years without attempting to commit suicide, there is no real danger
21 associated with enjoining the State from placing him on observation or suicide watch. But
22 Dozier has informed several people that he desires to kill himself should the State not be able
23 to carry out the execution. He has recently taken affirmative steps that suggest he is actively
24 attempting to kill himself (seeking drugs and information about how to cut himself to bleed
25 out). And he has recently referenced his previous attempt at suicide in a phone conversation.137
26 An injunction from this Court will effectively tie NDOC’s hands and prevent it from shielding
27
136 18 U.S.C. 3626(a)(2).
28
137 Ex. O at 1 APP 125 (11/1/18 entry).

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1 Dozier from his own suicidal ideations should they resurface. In addition to these four specific
2 facts relating to Dozier’s specifically, the State notes that four inmates on death row in
3 California have died of suspected suicides in the past month.138 Smuggled in drugs is the
4 suspected cause of death.139
5 The balance of the equities favors the State.
6 4. The Public Interest Requires the TRO Motion to be Denied
7 “[M]aintaining institutional security and preserving internal order and discipline are
8 essential goals that may require limitation or retraction of the retained constitutional rights
9 of . . . convicted prisoners . . .”140 Similarly, the injunctive relief is not in public interest, as
10 “there is a public interest in orderly and safe prisons.”141 The public interest is served when
11 prisons are run efficiently and operated by prison officials.142
12 Safeguarding against inmates’ attempts to kill themselves and precluding the
13 introduction of smuggled drugs into a prison are clearly within the public interest. In order to
14 do that, the State must be able to act swiftly to take emergency action to move an inmate to
15 observation. The State has implemented protections to ensure that such moves are justified
16 and when based on mental health concerns, in consultation with mental health staff.
17 Dozier’s assertion that the injunction being sought is narrow and only applies to him is
18 wrong. As noted above, the prayer of relief is very broad. And to the extent it only applies to
19 him that is only true in the narrowest sense. Make no mistake, other inmates facing a mental
20 health observation will seek the same relief — and will use any custom-crafted ruling for
21 Dozier as precedent. The Court should not fashion special rules for Dozier that will inevitably
22 be misused in future cases. Even though Dozier is a condemned inmate that has ostensibly
23 waived his appeals and submitted to his sentence, Dozier’s conditions of confinement claim
24
138California prison officials probe possible contraband drugs after 2 death row inmates
25 found dead, Exhibit CC, 1 APP 301-303.
139 Id.
26 140 Bell v. Wolfish, 441 U.S. 520, 547, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979).
141 See Epps v. Grannis, No. 10CV1949-BEN MDD, 2011 WL 3204811, at *3 (S.D. Cal.
27
July 26, 2011).
142 Turner, v. Safley, 482 U.S. 78, 85 (1987); see also Howard v. Skolnik, No. 2:08-CV-
28
00728RCJGWF, 2008 WL 4568033, at *4 (D. Nev. Oct. 8, 2008).

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1 and other causes of action are no different from the numerous other similar cases that this
2 Court has seen over the years. Dozier should not receive special treatment.
3 Awarding injunctive relief will seriously jeopardize the NDOC’s ability to protect Dozier
4 from Dozier. It will significantly impair the normal and appropriate operations of ESP. It will
5 undermine the crucial decision making efforts of not only the correctional staff, but also the
6 mental health staff at ESP. None of those outcomes are in the public interest.
7 IV. CONCLUSION
8 For these reasons, the State respectfully requests that the Court deny the TRO Motion
9 in its entirety.
10 DATED this 14th day of December, 2018.
11 ADAM PAUL LAXALT
Attorney General
12
By: /s/ D. Randall Gilmer
13 Jordan T. Smith (Bar No. 12097)
Deputy Solicitor General
14 D. Randall Gilmer (Bar No. 14001)
Chief Deputy Attorney General
15 Attorneys for Defendants
16

17

18

19

20

21

22

23

24

25

26

27

28

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1 CERTIFICATE OF SERVICE
2 I certify that I am an employee of the State of Nevada, Office of the Attorney General,
3 and that on December 14, 2018, I electronically filed the foregoing DEFENDANTS’
4 STATE OF NEVADA, NEVADA DEPARTMENT OF CORRECTIONS, AND JAMES
5 DZURENDA’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR
6 TEMPORARY RESTRAINING ORDER WITH NOTICE AND PRELIMINARY
7 INJUNCTION (ECF No. 6) via this Court’s electronic filing system. Parties who are
8 registered with this Court’s electronic filing system will be served electronically.
9 Lori C Teicher
Federal Public Defender
10 411 E Bonneville Ave.
Suite 250
11 Las Vegas, NV 89101
Email: ECF_Vegas@fd.org
12
David S. Anthony
13 Federal Public Defender
411 E Bonneville Ave.
14 Suite 250
Las Vegas, NV 89101
15 Email: ECF_nvchu@fd.org
16 Timothy R. Payne
Federal Public Defenders Office
17 411 E. Bonneville Ave.
Suite 250
18 Las Vegas, NV 89101
Email: ecf_nvchu@fd.org
19 /s/ Barbara Fell
Barbara Fell, an employee of the
20 Office of the Nevada Attorney General
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