Clark v. Guerrero

Filing 105

ORDER Granting 104 Motion for Clarification. Signed by Magistrate Judge Peggy A. Leen on 08/31/2012. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MICHAEL CLARK,

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Plaintiff,
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vs.
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ADRIAN GUERRERO, et al.,
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Defendants. )
__________________________________________)

Case No. 2:09-cv-00141-JCM-PAL
ORDER
(Mtn for Clarification - Dkt. #104)

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This matter is before the court on Defendant Adrian Guerrero’s Motion for Clarification (Dkt.
#104). The court has considered the Motion.
BACKGROUND

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This case has a complicated procedural history, and there has been considerable delay in this

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case as a result. In December 2008, Plaintiff Clark filed a complaint in Nevada state court, alleging

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claims under 42 U.S.C. § 1983 against Defendant Adrian Guerrrero, a prison official at Southern Desert

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Correctional Center (“SDCC”). On January 21, 2009, the Nevada Attorney General’s Office filed a

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Notice of Removal (Dkt. #1). On January 26, 2009, Guerrero filed a Motion to Extend Time (Dkt. #4),

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which the court granted in an Order (Dkt. #4), allowing him until March 12, 2009, to respond to

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Plaintiff’s complaint. On March 12, 2009, Guerrero filed a Motion to Dismiss (Dkt. #8), asserting

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Plaintiff had not stated a constitutional claim, and Guerrero was entitled to qualified immunity. The

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court denied Guerrero’s Motion to Dismiss in an Order entered July 27, 2009, and found that

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considering Plaintiff’s allegations in the light most favorable to him, it was possible that Guererro’s

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actions were “taken in cruel and sadistic manner,” and therefore, Plaintiff had alleged sufficient facts to

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meet his pleading burden. Id. at 2:4-9 (also observing that “without more information in the record, it

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is impossible to determine if there was an Eighth Amendment violation in this case”).

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On September 10, 2009, the court entered a Scheduling Order (Dkt. #47), which provides,

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“Motions for summary judgment shall . . . be filed and served no later than thirty days after the close

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of discovery.” Dkt. #47 at 2:1-2. The parties engaged in discovery and related motion practice, and on

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April 28, 2010, the district judge entered the Pretrial Order (Dkt. #73), setting this matter for trial on

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October 18, 2010. Guerrero did not file a motion for summary judgment before or after the deadline set

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by the court’s Scheduling Order, nor he did not request an extension of time to do so.

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Subsequently, on September 28, 2010, Chief Judge Hunt consolidated a related case, Clark v.

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Williams, Case No. 2:10-cv-00736-RLH-RJJ, with this case and vacated the trial date set in this matter.

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See Order to Consolidate (Dkt. #80). Judge Hunt’s Order screened Plaintiff’s Complaint in Clark v.

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Williams and directed Plaintiff to file an amended complaint stating all the claims from both cases in

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this matter. Id. On December 2, 2010, Plaintiff filed his Amended Complaint (Dkt. #88). On

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November 21, 2011, the Clerk of Court entered a Notice (Dkt. #94), advising the parties that this case

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would be dismissed for failure to prosecute. Plaintiff filed a Motion to Set Trial (Dkt. #95) on

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December 21, 2011. This case was dismissed in error on December 30, 2011. On April 13, 2012, the

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court re-opened the case, directing Defendants to file a response Plaintiff’s Motion to Set Trial. See

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Order (Dkt. #98).

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Defendants complied on April 27, 2012, and their Response (Dkt. #99) asserts the court did not

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screen Plaintiff’s original complaint in compliance with 28 U.S.C. § 1915A. Additionally, Defendants

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contend that Plaintiff’s Amended Complaint does not comply with the Order to Consolidate because it

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re-alleges claims that were previously dismissed in Clark v. Williams. On May 5, 2012, the district

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judge entered an Order (Dkt. #101), in which he found that the initial error, later compounded, resulted

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because defense counsel: (a) sought an extension of time to file a responsive pleading; and (b) filed a

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responsive pleading. See generally Dkt. ##3, 8. “By doing so, the attorney general rendered any

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screening order by the court superfluous, and thus no screening order was entered.” Order (Dkt. #101)

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at 2:2-3. The Joint Status in Removal (Dkt. #6) explicitly provides, “The parties state there are no other

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matters at this time requiring the Court’s attention.” Joint Status (Dkt. #6) at 3:3-4. The district judge

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referred the Amended Complaint to the undersigned to screen pursuant to 28 U.S.C. § 1915A. See

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Order (Dkt. #101).
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In an Order and Report of Findings and Recommendation (Dkt. #102) (the “Screening Order”)

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entered August 8, 2012, the court found Plaintiff had stated a claim against Guerrero for excessive use

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of force in violation of the Eighth Amendment, and dismissed Plaintiff’s Sixth Amendment claim and

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Fourteenth Amendment claim against Warden Williams with leave to amend. The undersigned also

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recommended dismissal of (a) Plaintiff’s Fourteenth Amendment due process claim against Warden

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Williams related to the warden’s alleged failure to mail a grievance to the Office of the Inspector

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General; and (b) Plaintiff’s First Amendment retaliation claim against Warden Williams. The

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Screening Order directed the Attorney General to notify the court whether it would accept service on

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behalf of Warden Williams. Finally, the court indicated that if Plaintiff filed a second amended

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complaint, it would be screened pursuant to 28 U.S.C. § 1915A. The court would then direct the

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Attorney General to answer within a time certain if, after screening, the court found Plaintiff stated

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claim(s) upon which relief can be granted. If, however, Plaintiff does not file a second amended

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complaint, the court directed the Attorney General to file an answer to the Amended Complaint.

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DISCUSSION
The instant Motion seeks clarification about the court’s Screening Order. Guerrero assert that

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after screening, the court typically requires a defendant to “file and serve an answer or other response”

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by a certain date. Motion at 2:11-12 (emphasis in original). Guerrero is unclear about whether the

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undersigned intended to limit him to file an answer only and seeks leave to file a motion for summary

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judgment in lieu of an answer to the Amended Complaint. Defendant notes that before the

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consolidation of this case with Clark v. Williams, he filed a Motion to Dismiss, or in the Alternative,

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Motion for Summary Judgment (Dkt. #8), which the court construed as a Motion to Dismiss, finding

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summary judgment was premature. Defendant writes, “It is not clear from the record why the motion

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was not renewed in accordance with the time set forth in the scheduling order, after the close of

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discovery.” Motion at 2:27-28. Defendant seeks leave to file an initial responsive pleading, or

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alternatively, a motion for summary judgment to the Amended Complaint before having to proceed to

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trial on Plaintiff’s excessive force claim.

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This case has been pending in this court since January 1, 2009. The court has determined on
two occasions–first in the Order (Dkt. #44) denying Guerrero’s Motion to Dismiss, and second in the
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Screening Order (Dkt. #102)–that Plaintiff stated a viable Eighth Amendment excessive force claim

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against Guerrero for purposes of Rule 12(b)(6) of the Federal Procedure. A scheduling order was

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entered, discovery closed, and the deadline for filing dispositive motions with respect to Clark’s

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excessive force claim against Guerrero ran nearly three years ago in January 2010.

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The court will not further delay this matter by allowing a third motion to dismiss on the same

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claim against Guerrero. The parties engaged in discovery on Plaintiff’s excessive force claim beginning

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in September 2009, and conducted pretrial motion practice. The deadline for filing a motion for

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summary judgment as to the excessive force claim has long since run. The Attorney General has not

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shown good cause let alone excusable neglect for its failure to file a timely motion for summary

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judgment. Before this case was consolidated with Clark v. Williams, the parties filed a joint pretrial

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order and this matter was set for trial on October 18, 2010. See Order Regarding Trial (Dkt. #79).

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Throughout all of these proceedings Clark’s excessive force claim against Guerrero has remained the

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same. Clark has not yet plead a cognizable claim against Warden Williams who has not made an

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appearance and will not be required to file an answer or make an appearance unless and until Clark files

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an amended complaint which the court screens and finds states a cognizable claim.

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For these reasons, the court directed that, if Plaintiff chooses not to file a second amended

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complaint by the September 7, 2012, deadline imposed by the Screening Order (Dkt. #102), the

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Attorney General shall file an answer to the Amended Complaint no later than September 28, 2012.

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This will close the pleadings and put the case back on the docket for trial.

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However, if Plaintiff files a second amended complaint, the court will screen it pursuant to Rule

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12(b)(6) of the Federal Rules of Civil Procedure. The court directed that the Attorney General indicate

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whether it would accept service on behalf of Warden Williams in the event Clark states a cognizable

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claim by the September 7th deadline to expedite further proceedings given the considerable delay that

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has already occurred. If Plaintiff files an Amended Complaint asserting claims against Warden

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Williams the court will screen the complaint and determine whether it states a viable claim. If the

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Amended Complain states a viable claim against Warden Williams the court will direct that an answer

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be filed by a date certain because the screening order will have already determined whether Clark stated

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a claim. The court will then enter a new scheduling order, discovery will begin and conclude, and
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dispositive motion practice will follow.

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Accordingly,

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IT IS ORDERED that Guerrero’s Motion for Clarification (Dkt. #104) is GRANTED. The

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court clarifies the Screening Order (Dkt. #102) as follows:
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If Plaintiff does not file a second amended complaint by September 7, 2012, the

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Attorney General shall file an answer to the Amended Complaint by September 28,

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2012.

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If Plaintiff files a second amended complaint alleging claim(s) against Warden Williams,
the court will screen it pursuant to 28 U.S.C. § 1915A . If the second amended

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complaint states a viable claim against Warden Williams the court will direct that an

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answer be filed by a date certain. Once an answer is filed, the court will enter a new

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standard discovery plan and scheduling order for prisoner civil rights claims.

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Dated this 31st day of August, 2012.

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________________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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