Opinion
No. 64291
08-31-2015
DAVID ABARRA, Appellant, v. THE STATE OF NEVADA; NEVADA DEPARTMENT OF CORRECTIONS; CATHERINE CORTEZ MASTO; OFFICE OF THE ATTORNEY GENERAL; MONICA NAVARRO; NATHAN HASTINGS; AND LISA WALSH, Respondents.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER AFFIRMING IN PART AND DISMISSING IN PART
This is an appeal from a district court order dismissing a civil action and an order denying a motion to compel withdrawal of the respondents' counsel. First Judicial District Court, Carson City; James Todd Russell, Judge.
Appellant David Abarra argues the district court erred in granting the respondents' motion to dismiss his complaint. This court reviews a district court's order granting a motion to dismiss de novo. Munda v. Summerlin Life & Health Ins. Co., 127 Nev. ___, ___, 267 P.3d 771, 774 (2011). In addressing Abarra's arguments, we must accept all of the factual allegations of the complaint as true and draw all inferences in favor of Abarra. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008) (explaining that, on appeal, a court rigorously reviews a dismissal for failure to state a claim, accepting all of the factual allegations in the complaint as true, and drawing all inferences in favor of the plaintiff). A motion to dismiss is properly granted when the plaintiff fails to exhaust administrative remedies prior to seeking judicial relief. Rosequist v. Int'l Ass'n of Firefighters Local 1908, 118 Nev. 444, 448, 49 P.3d 651, 653 (2Q02), overruled on other grounds by Allstate Ins. Co. v. Thorpe, 123 Nev. 565, 573, 170 P.3d 989, 995 (2007). Having reviewed Abarra's civil appeal statement, the response and the record on appeal, we conclude the district court properly dismissed Abarra's claims.
First, Abarra argues the district court erred in concluding he failed to properly exhaust the Nevada Department of Corrections' (NDOC) administrative remedies. Abarra asserts any error regarding the exhaustion of the administrative remedies was caused by the respondents. Abarra also asserts he does not have to grieve issues involving the Attorney General's Office. Abarra's arguments are without merit. Abarra submitted his informal grievance well beyond the six-month deadline and does not demonstrate any defendant prevented him from timely submitting a grievance. See NRS 209.243(1); NDOC Administrative Regulation (AR) 740.05(4)(A). Moreover, Abarra fails to demonstrate he need not grieve his claims involving the Attorney General's Office as those claims involve the legal representation of the NDOC and actions performed in furtherance of that representation. See NRS 41.0322(1) (stating inmates may not proceed with a civil action against the NDOC or its agents without exhausting the NDOC's administrative remedies); Cmty. Dental Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002) (explaining that attorneys are generally considered to be agents of their clients). Therefore, the district court did not err in granting the motion to dismiss.
Second, Abarra argues the district court should have stayed the proceedings pursuant to NRS 41.0322(3) while he exhausted administrative remedies. Abarra's argument is without merit. NRS 41.0322(3) requires a district court to stay certain civil actions while an inmate exhausts the NDOC administrative remedies, but states that the court shall dismiss the action if the inmate "has not timely filed [an] administrative claim form pursuant to NRS 209.243." Here, Abarra filed his administrative claim form well beyond the six-month deadline, see NRS 209.243(1), and therefore, the district court properly dismissed this matter.
Third, Abarra argues the district court was biased against him. Abarra's argument lacks merit because a district court's rulings and actions during the course of official judicial proceedings does not establish the personal bias necessary to require disqualification. See In re Petition to Recall Dunleavy, 104 Nev. 784, 789-90, 769 P.2d 1271, 1275 (1988).
Abarra also argues the district court made improper credibility determinations and improperly considered a declaration filed by the respondents. In addition, Abarra asserts the district court committed professional misconduct. As we conclude the district court properly granted the motion to dismiss, we conclude Abarra is not entitled to relief for any of these arguments. --------
Finally, Abarra argues the district court erred in denying his motion to compel the withdrawal of the Attorney General's Office from representation of the defendants. This is not an appealable order, and therefore, we dismiss this portion of Abarra's appeal for lack of jurisdiction. See NRAP 3A(b); Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 209, 678 P.2d 1152, 1153 (1984). Accordingly, we
ORDER the judgment of the district court AFFIRMED and the appeal of the denial of a motion to compel withdrawal of counsel DISMISSED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver
cc: Hon. James Todd Russell, District Judge
David Abarra
Attorney General/Carson City
Carson City Clerk