                Docket No. 58353
                            In the district court action underlying this appeal, Hernandez
                filed an amended complaint on the form that is used for filing state tort
                claims against the State of Nevada under NRS 41.031, which waives the
                State's immunity from liability for civil actions. Respondents Jack
                Palmer, Kirk Widmar, and Valaree Olivas, who were the named
                defendants to the action, moved to dismiss the complaint on the ground
                that Hernandez had failed to name the State as a defendant, as required
                by NRS 41.031(2) and NRS 41.0337. In response, Hernandez conceded
                that, to the extent that his complaint was filed as a state tort action,
                dismissal for failure to name the State would be appropriate.
                Nevertheless, he contended that, despite his use of the state tort form, he
                had intended to file the action as a civil rights complaint under 42 U.S.C. §
                1983, for which the State was not a proper defendant. Thus, he moved the
                district court for permission to amend his complaint in order to properly
                file it on the form for filing 42 U.S.C. § 1983 civil rights complaints.
                Palmer, Widmar, and Olivas opposed the motion to amend.
                            The district court granted the motion to dismiss, concluding
                that the complaint was filed pursuant to NRS 41.031 and that Hernandez
                had failed to name the State as a defendant. Additionally, the court found
                that Hernandez had "styled his Opposition as both an opposition and a
                Motion for leave to amend," but that the only pleadings allowed by NRCP
                7(a) are a complaint and an answer. The court therefore declined to rule
                on the motion to amend, stating that it was an improper attempt to
                incorporate a motion into a pleading. This appeal followed. As directed,
                respondents have filed a response to appellant's civil proper person appeal
                statement. Hernandez has filed a reply.

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                      Motion to amend
                            As an initial matter, Hernandez argues that the district court
                mistakenly concluded that his motion to amend was improperly
                incorporated into a pleading. Respondents do not address this argument
                in their response to appellant's appeal statement.
                            As noted by the district court, NRCP 7(a) sets forth the
                pleadings that are allowed in a civil action. But neither a motion to
                dismiss, nor an opposition thereto, is a pleading identified under NRCP
                7(a). Thus, Hernandez's motion to amend, which was incorporated with
                his opposition to the motion to dismiss, was not improperly submitted as
                part of a pleading, and the district court therefore abused its discretion by
                declining to consider the motion to amend on the ground that Hernandez
                had improperly attempted to combine it with a pleading.       See Whealon v.
                Sterling, 121 Nev. 662, 665, 119 P.3d 1241, 1244 (2005) (providing that the
                district court's decision as to a motion to amend the pleadings is reviewed
                for an abuse of discretion).
                      Naming the State as a defendant
                            Although the district court did not address the merits of the
                motion to amend, it is well established that this court may affirm a correct
                result produced by the district court for reasons other than those relied on
                by that court in issuing its decision. See Wyatt v. State, 86 Nev. 294, 298,
                468 P.2d 338, 341 (1970). Here, in responding to appellant's appeal
                statement, respondents argue that, even with the proposed amendment,
                the complaint would have been subject to dismissal because NRS 41.031
                and NRS 41.0337 require the State to be named as a defendant in actions
                involving state employees performing their official duties, regardless of
                whether such actions are brought pursuant to 42 U.S.C. § 1983.
                Hernandez, however, argues that NRS 41.031 and NRS 41.0337 do not
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                apply to actions brought under 42 U.S.C. § 1983, which recognizes a right
                of action against any "person" who, under color of law, deprives another
                person of his or her constitutional rights. If respondents are correct,
                amendment of the complaint would have been futile, and dismissal would
                have been proper.    See Halcrow, Inc. v. Eighth Judicial Dist. Court, 129
                Nev. , 302 P.3d 1148, 1152 (2013) ("[L]eave to amend should not be
                granted if the proposed amendment would be futile.").
                            As mentioned above, NRS 41.031(1) waives the State's
                immunity from liability in civil actions, with certain exceptions. NRS
                41.031(2) further provides that an action brought under that statute "must
                be brought in the name of the State of Nevada on relation of the particular
                department, commission, board or other agency of the State whose actions
                are the basis for the suit." And under NRS 41.0337, any "tort action
                arising out of an act or omission within the scope of a person's public
                duties or employment," must include the State or appropriate political
                subdivision as a named defendant under NRS 41.031. In other words,
                under these statutes, any claims against the State or a state officer acting
                "within the scope of [his or her] public duties or employment" must name
                the State as a defendant. NRS 41.0337.
                             In Will v. Michigan Department of State Police, 491 U.S. 58,
                64-70 (1989), however, the United States Supreme Court concluded that
                states are not "persons" within the meaning of 42 U.S.C. § 1983. As a
                result, an individual cannot maintain a 42 U.S.C. § 1983 action against a
                state. See id. Moreover, the Court noted that, when a state official is sued
                in his or her official capacity, the suit is not truly brought against the
                official, but instead, is a suit against the official's office. Id. at 71. Such a
                case therefore is effectively a suit against the state itself.   Id. As a result,

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                    the Supreme Court extended its conclusion that a state is not a "person"
                    for the purposes of 42 U.S.C. § 1983 to apply equally to state officials sued
                    in their official capacities. Id. In other words, a 42 U.S.C. § 1983 action
                    cannot be properly brought against the state or a state official acting in his
                    or her official capacity, regardless of whether the complaint is filed in
                    state or federal court. See Will, 491 U.S. at 64-71. Such an action may be
                    made, however, against a state official in his or her personal or individual
                    capacity, even if the actions were taken as part of his or her official duties.
                    See Hafer v. Melo, 502 U.S. 21, 27-28 (1991).
                                Because the State cannot be a proper defendant to a 42 U.S.C.
                    § 1983 action, see Will, 491 U.S. at 64-70, NRS 41.031 and NRS 41.0337
                    necessarily do not apply to 42 U.S.C. § 1983 actions. Instead, to the extent
                    that Hernandez's complaint was intended to institute a 42 U.S.C. § 1983
                    civil rights action, Palmer, Widmar, and Olivas, in their individual
                    capacities were the proper defendants to that action, not the State. Under
                    these circumstances, it would not have been futile to allow Hernandez to
                    amend his complaint so that it presented an action under 42 U.S.C. § 1983
                    against Palmer, Widmar, and Olivas in their individual capacities.
                                Because the district court improperly declined to consider the
                    motion to amend and amendment would not have been futile, the district
                    court abused its discretion by denying the motion to amend and dismissing
                    Hernandez's complaint. See Whealon, 121 Nev. at 665, 119 P.3d at 1244
                    (providing that the district court's decision as to a motion to amend the
                    pleadings is reviewed for an abuse of discretion). Accordingly, we reverse
                    the district court's order of dismissal in Docket No. 58353 and remand this




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              gai                          ES:5141EfiffEBEN   EMEMEI       MEE
                matter to the district court for further proceedings consistent with this
                order. 2
                Docket No. 59414
                              After the complaint discussed above was dismissed,
                Hernandez filed a second district court complaint under 42 U.S.C. § 1983
                based on the same underlying facts, again naming as defendants Widmar
                and Palmer, but this time also naming respondents Katie Phillips and
                Robert LeGrand as defendants while excluding Olivas from the complaint.
                The district court ultimately dismissed this second complaint on claim
                preclusion grounds based on the dismissal of appellant's previous action,
                and this appeal followed.
                              Claim preclusion bars a subsequent action "based on the same
                set of facts and circumstances" as a prior action, Five Star Capital Corp. v.
                Ruby, 124 Nev. 1048, 1055, 194 P.3d 709, 714 (2008), and it applies when
                "(1) the parties or their privies [to the suits] are the same, (2) the final
                judgment [in the first suit] is valid, and (3) the subsequent action is based
                on the same claims or any part of them that were or could have been
                brought in the first case." Id. at 1054, 194 P.3d at 713 (footnotes omitted).
                With regard to the validity of the final judgment, this court has clarified


                       2 Tothe extent that respondents assert that they were never properly,
                served with the complaint in this action, Hernandez disputes this
                contention, and the district court made no findings below with regard to
                service. As a result, we decline to address this factual issue for the first
                time on appeal. See Ryan's Express Trans. Servs., Inc. v. Amador Stage
                Lines, Inc. 128 Nev. „ 279 P.3d 166, 172 (2012) (explaining that
                GC ,
                 Lain appellate court is not particularly well-suited to make factual
                determinations in the first instance"). Nevertheless, we note that, to the
                extent that respondents raised this issue below, they are not precluded
                from raising it in the district court on remand.

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                that the first judgment on which preclusion is based does not necessarily
                have to have been on the merits, but cannot have been a dismissal for a
                reason that is not intended to have a preclusive effect, such as a dismissal
                for failure to join a party. Id. at 1054 n.27, 194 P.3d at 713 n.27.
                             Here, Hernandez's first action was dismissed for failure to
                name the State as a party to the complaint pursuant to NRS 41.031 and
                NRS 41.0337. Thus, it was not a valid final judgment intended to give
                preclusive effect, and the district court erred by applying the doctrine of
                claim preclusion to this case.     See Five Star Capital, 124 Nev. at 1054
                n.27, 194 P.3d at 713 n.27. Moreover, although Hernandez again did not
                name the State as a defendant in the second action, as discussed above,
                the State was not a proper party to his 42 U.S.C. § 1983 complaint.      See
                Will, 491 U.S. at 64-71. Accordingly, we reverse the district court's order
                of dismissal in Docket No. 59414 and remand the matter to the district
                court for further proceedings. 3
                             It is so ORDERED.




                                         Gibbons



                Douglas                                     Saitta

                      3 We recognize that our resolution of these appeals results in two
                nearly identical cases being returned to the district court for disposition,
                and we make no comment as to how the district court should administer
                these cases on remand. See Maheu v. Eighth Judicial Dist. Court, 89 Nev.
                214, 217, 510 P.2d 627, 629 (1973) (recognizing the inherent power of
                 every court to control the disposition of the causes on its docket with
                economy of time and effort for itself, for counsel, and for litigants").

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                cc: Hon. Richard Wagner, District Judge
                     Miguel Hernandez
                     Attorney General/Carson City
                     Pershing County Clerk




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