Clark v. Thomas

Filing 79

ORDER Granting 78 Motion to Vacate Trial Deadlines. Signed by Judge Gloria M. Navarro on 5/16/12. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MICHAEL E. CLARK,
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Plaintiff,

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vs.

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JOHN THOMAS,
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Defendant.

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Case No.: 2:09-cv-02272-GMN-GWF
ORDER

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This is a civil rights action filed by pro se Plaintiff Michael Clark, a former inmate with

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the Nevada Department of Corrections (“NDOC”). Pending before the Court is Defendant John

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Thomas’s Motion to Vacate Trial Deadlines (ECF No. 78).

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I.

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BACKGROUND
Plaintiff alleges that on November 9, 2008, Defendant Thomas, a former corrections

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officer at Southern Desert Correctional Center (“SDCC”) allowed another inmate, Dalvon Terry,

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access to the yard in Plaintiff’s lock down segregation unit in order for Terry to assault Plaintiff.

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This action was originally filed in state court and removed to this Court in November

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2009. (ECF No. 1.) In July 2010, the Complaint was screened pursuant to 28 U.S.C. § 1915A,

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and dismissed without prejudice for failure to state a claim, and Plaintiff was given leave to

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amend. (ECF No. 20.) Plaintiff filed his First Amended Complaint on August 19, 2010. (ECF

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No. 21.) The First Amended Complaint was screened, and Plaintiff’s claim for injunctive relief

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and his claim against Defendant in his official capacity were dismissed without prejudice,

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leaving Plaintiff’s claim for monetary damages against Defendant in his individual capacity.

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(ECF No. 25.)

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Defendant then filed his Answer on August 22, 2011 (ECF No. 36), and subsequently

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filed a Notice (ECF No. 43) informing the Court of the parties’ failed efforts to comply with the

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Court’s order directing them to submit a proposed discovery plan. In the Notice, Defendant

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stated that Plaintiff refused to sign the proposed discovery plan/scheduling order and had

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indicated his intent to file a motion to compel instead. (ECF No. 43.)
Plaintiff’s Motion to Compel (ECF No. 41) was filed on October 24, 2011, requesting

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production of the investigative report prepared by the NDOC Inspector General’s Office, which

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Defendant submitted to the Court under seal (see ECF Nos. 45-47) and served upon Plaintiff

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(see ECF No. 51).

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A Scheduling Order was issued by the Court on October 27, 2011 (ECF No. 44). The

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Scheduling Order set the discovery deadline as February 17, 2012, and set March 29, 2012 as

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the deadline to file dispositive motions. (ECF No. 44.) The Court set a deadline of January 30,

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2012, for any motions or stipulations to extend discovery. (ECF No. 44.)

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Plaintiff filed a Motion for Summary Judgment (ECF No. 55) on February 13, 2012,

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which is now fully briefed. Plaintiff also filed an improper discovery request that was stricken

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by the Court. (See ECF Nos. 56, 60.)

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On March 29, 2012, Defendant filed a motion requesting an extension of time to file

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dispositive motions (ECF No. 65), which was granted by the Court (ECF No. 66). Defendant

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filed his Motion for Summary Judgment (ECF No. 69) on April 27, 2012.

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On December 21, 2011, the Court set trial deadlines requiring submission of trial

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documents by May 24, 2012, setting calendar call for May 29, 2012, and jury trial for June 5,

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2012. (ECF No. 53.) Defendant’s counsel contacted Plaintiff on May 9, 2012, to request a

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stipulation to extend those deadlines, and Plaintiff refused. (See ECF No. 78.) Defendant then

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filed the instant motion to vacate trial deadlines. (ECF No. 78.)

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II.

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LEGAL STANDARD
The decision to grant or deny a continuance lies within the discretion of the Court. Rios-

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Berrios v. I.N.S., 776 F.2d 859, 862 (9th Cir. 1985). Four factors are considered: (1) the likeli-

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hood a continuance would satisfy the need for which it was requested; (2) the inconvenience to

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the court, parties, and witnesses; (3) the extent of harm to the movant resulting from the denial

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of a continuance; and (4) the movant’s diligence in readying his case for trial. United States v.

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2.61 Acres of Land, 791 F.2d 666, 671 (9th Cir. 1985) (citing United States v. Flynt, 756 F.2d

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1352, 1359 (9th Cir. 1985), amended, 764 F.2d 675 (9th Cir. 1985)).

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III.

DISCUSSION
Defendant moves to vacate the trial deadlines because the parties’ motions for summary

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judgment are still pending and/or unripe. Currently, Plaintiff’s Response to Defendant’s Motion

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for Summary Judgment is due May 21, 2012. Furthermore, a joint pretrial order has not yet been

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filed, because the deadline to file a joint pretrial order is thirty (30) days after the Court’s ruling

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on the dispositive motions. See D. Nev. R. 26-1(e)(5). Finally, Plaintiff is still attempting to

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conduct discovery (see ECF No. 73), which indicates that Plaintiff is also not prepared for trial.

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For these reasons alone, the Court agrees with Defendant that the trial deadlines set forth

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in the Court’s December 21, 2011, Minute Order should be vacated. Also, there is no indication

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that Defendant’s diligence in readying his case for trial is lacking so as to justify denial of the

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motion. For the reasons discussed, the Court also finds that denying the motion would result in

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inconvenience to the Court, the parties and witnesses, and harm to Defendant. After receipt of

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the parties’ joint pretrial order, the Court will reset the trial deadlines, if necessary.

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IV.

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CONCLUSION
IT IS HEREBY ORDERED that Defendant’s Motion to Vacate Trial Deadlines (ECF

No. 78) is GRANTED.
DATED this 16th day of May, 2012.

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_________________________
Gloria M. Navarro
United States District Judge

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