Mwanza v. Naphcare, Inc. et al

Filing 29

ORDER that Plaintiffs Motion to Compel 28 is denied. Signed by Magistrate Judge Carl W. Hoffman on 10/19/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TACUM JAWANZA MWANZA,

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Plaintiff,
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vs.
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NAPHCARE, et al.,
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Defendants. )
__________________________________________)

Case No. 2:11-cv-00471-KJD-CWH
ORDER

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This matter is before the Court on Plaintiff’s Motion to Compel (#28), filed October 13, 2011.
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As set forth in the recent order staying discovery in this matter (#27), Plaintiff is currently
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incarcerated at the Nevada High Desert Prison facility. His complaint was screened and it was
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determined that Plaintiff had pled facts sufficient to support his claim that his Eight Amendment rights
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were violated in February of 2011.1 See Order (#2) at 6:3-9. On June 10, 2011, Defendants Patricia

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Oliver and Cornelius Henderson filed a motion to dismiss pursuant to Rule 12(b)(6). Upon review of
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the motion to dismiss, the Court granted Defendants motion to stay discovery pending resolution of the
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motion to dismiss. See Order (#27).
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Plaintiff has now filed what he terms as a motion to compel the court to acknowledge that it was
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not necessary for Plaintiff to exhaust administrative remedies under the Prisoner Litigation Reform Act
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because the facts giving rise to his complaint occurred while he was a pretrial detainee - not a prisoner.
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The Court also held that Plaintiff did not plead sufficient facts to support his claim that his Eighth
Amendment rights were violated as a result of the events that occurred on or between September 25, 2010, and
November 23, 2011. See Order (#2) at 5:24-26.

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Broadly construing Plaintiff’s motion (#28), it appears that the motion is either a request for

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reconsideration of the order granting the stay (#27) or a further response to Defendants’ motion to

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dismiss (#18). To the extent the motion is a sur-reply to the motion to dismiss (#18), it is not well taken

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as Plaintiff must first obtain leave of court to make such a filing. To the extent the motion is a request

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for the Court to reconsider its order staying discovery in this matter it is equally misplaced.

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While the Federal Rules of Civil Procedure do not explicitly recognize a petition for rehearing

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or motion to reconsider, this court has the inherent power to revise, correct, and alter interlocutory

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orders at any time prior to entry of a final judgment. See Sch. Dist. No. 5 v. Lundgren, 259 F.2d 101,

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105 (9th Cir. 1958); Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 571-72 (7th Cir. 2006). This

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authority is governed by the doctrine that a court will generally not reexamine an issue previously

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decided by the same or higher court in the same case. Lucas Auto. Eng'g, Inc. v. Bridgestone/Firestone,

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Inc., 275 F.3d 762, 766 (9th Cir. 2001); United States v. Cuddy, 147 F.3d 1111, 1114 (9th Cir. 1998).

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However, a court has discretion to depart from the prior order when (1) the first decision was clearly

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erroneous, (2) there has been an intervening change of law, (3) the evidence on remand is substantially

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different, (4) other changed circumstances exist, or (5) a manifest injustice would otherwise result.

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Cuddy, 147 F.3d at 1114.

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The only grounds upon which the Court might be inclined to reconsider its prior order granting a

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stay of discovery in this matter is that its prior ruling is clearly erroneous, will result in a manifest

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injustice, or changed circumstances exist. The Court’s order regarding the stay is not clearly erroneous.

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The Prisoner Litigation Reform Act requires a prisoner, including a pretrial detainee, to exhaust

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available administrative remedies prior to filing a § 1983 claim. 42 U.S.C.1997e(a) FN1; Booth v.

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Churner, 532 U.S. 731, 740-41, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Even if the prisoner believes

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pursuing an administrative remedy is futile, exhaustion is required. Orbriecht v. Raemisch, 517 F.3d

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489, 492 (7th Cir. 2007) (citing Booth, 532 U.S. at 741 n. 6). The stay will not result in a manifest

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injustice as it simply stays discovery pending resolution of a motion to dismiss. Should Plaintiff’s

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claims survive the motion to dismiss he will have the opportunity to pursue discovery. Finally, Plaintiff

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has not pointed to any changed circumstances which would warrant deviation from the prior

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determination to stay discovery in this matter until the motion to dismiss is resolved. Accordingly,
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IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel (#28)is denied.

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DATED this 19th day of October, 2011.

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C.W. Hoffman, JR.
United States Magistrate Judge

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