Bacon v. Reyes

Filing 79

ORDER Denying 55 Plaintiff's Motion for a Limited Discovery Order and Granting 73 Defendants' Motion for a Joint Status Conference and Request to Stay Responses to Pending Motions. IT IS FURTHER ORDERED that the briefing on all pendi ng motions (# 48 , # 56 , # 58 , # 59 , # 63 , # 64 , # 66 , # 68 , # 71 , and # 75 ) and on any motions filed before 05/20/2013 is STAYED. Status Conference is set for 5/20/2013 01:00 PM in LV Courtroom 3D before Magistrate Judge Cam Ferenbach. Plaintiff will appear telephonically. Signed by Magistrate Judge Cam Ferenbach on 04/22/2013. (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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PERCY LAVAE BACON,
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Plaintiff,
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v.
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OSWALD REYES, et al.,
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Defendants.

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2:12-cv-01222-JCM-VCF
ORDER
(Motion for A Limited Discovery Order
#55 and Motion For A Joint Status
Conference and Request to Stay Responses
to Pending Motions #73)

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Before the court is pro se plaintiff Percy Lavae Bacon’s Motion for A Limited Discovery Order.
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(#55). Defendants did not file an Opposition.
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Also before the court is the defendants’ Motion For A Joint Status Conference and Request to
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Stay Responses to Pending Motions. (#73). The deadline to file a response has not expired.
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Background
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On July 10, 2012, plaintiff filed his motion/application for leave to proceed in forma pauperis
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(#1), motion to seek leave of court to serve the “Administrative Claim” without the Nevada Department
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of Corrections Institutional Grievance Form (#2), motion to use the purchased money order for the fee
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(#3), motion to seek equitable tolling (#4), motion for temporary restraining order (#5), motion for
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permanent injunction (#6), and motion for appointment of counsel (#7). The court issued an order
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denying plaintiff’s pending motions (#1-#7), and dismissing the action without prejudice. (#8). The
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clerk entered judgment against plaintiff on July 23, 2012. (#9).
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On August 1, 2012, the plaintiff filed a motion to alter/amend clerk’s judgment (#9). (#10). The
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court entered an order on August 3, 2012, denying the plaintiff’s motion (#10). (#11). On August 30,
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2012, plaintiff filed a motion for relief from clerk’s judgment (#9). (#12). On September 11, 2012, the
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court issued an order granting the motion for relief (#12) and vacating the order (#8) dismissing the

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action and the judgment (#9).

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motion/application to proceed in forma pauperis (#15), a motion for leave to file an overly large § 1983

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claim (#16), a motion for appointment of counsel (#17), a motion for permanent injunction (#19), and

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a motion for permanent injunction for the Nevada Department of Corrections to stop purchasing items

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of food labeled “not for human consumption and no longer allow unlicensed personnel to prepare

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medically restricted diets” (#20).

(#13).

On September 25, 2012, plaintiff filed an amended

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On September 28, 2012, plaintiff filed a motion for reasonable explanations as to why Judge

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Navarro recused herself. (#21). On October 15, 2012, plaintiff filed a motion for temporary restraining

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order (#22) and a motion for permanent injunction (#23). On October 16, 2012, the court issued an

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order denying the motion for temporary restraining order (#22). (#25). On October 30, 2012, plaintiff

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filed a motion to alter or amend the court’s order (#25). (#26). Plaintiff filed a motion for temporary

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restraining order (#27) and a motion for preliminary injunction (#28) on November 7, 2012. On

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November 8, 2012, the court issued an order denying the motion for temporary restraining order (#27).

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(#29). On November 19, 2012, the court issued a screening order granting the motion to file overly

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large complaint (#16), denying the other pending motions (#17, #18, #19, #20, #21, #23, #26, and #28),

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dismissing several counts and defendants, deferring decision on the in forma pauperis application, and

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staying the action for 90 days. (#30). On November 19, 2012, the clerk filed the plaintiff’s complaint.

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(#31).

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On December 14, 2012, plaintiff filed a motion to amend order denying appointment of counsel

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(#33) and an amended complaint (#34). On December 19, 2012, the court issued an order striking the

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motion to amend (#33) and the amended complaint (#34). (#35). On December 28, 2012, plaintiff filed

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a motion for declaratory judgment (#36), which the court struck on January 15, 2013 (#38). On January

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16, 2013, the court issued an order scheduling an inmate early mediation conference for March 15,

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2013. (#39). On February 6, 2013, the court issued an order vacating the inmate mediation and stating

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that “if the parties are able to settle the case during the 90 day stay, the $350.00 filing fee need not be

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paid. However, if the parties are unable to settle, then the Court will reconsider the motion to proceed

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in forma pauperis (IFP), and plaintiff will have to pay the $350.00 filing fee in full...” (#40). On

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February 19, 2013, the Attorney General’s Office filed a report of the results of the 90-day stay. (#41).

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On February 26, 2013, plaintiff filed the instant motion to extend prison copywork limit (#42) and

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motion to prosecute this action without providing defendants a copy of the pro se pleadings (#43). On

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March 1, 2013, the court issued an order granting the plaintiff’s motion/application to proceed in forma

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pauperis (#15). (#44).

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On March 5, 2013, plaintiff filed a motion for District Judge to reconsider screening order (#45),

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a notice of shame and farce (#46), and an amended complaint (#47). Plaintiff filed a motion to formally

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address a misunderstood claim on March 12, 2013. (#48). On March 15, 2013, defendants filed a

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response to the motion to extend copy work limit (#49) and a non-opposition to the motion to pursue

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litigation without providing defendants a copy of the pro se pleadings (#50). Plaintiff filed a motion

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for summary judgment on the same day. (#51). On March 22, 2013, defendants filed a notice of

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acceptance of service. (#53).

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On March 26, 2013, plaintiff filed motions for preliminary injunction (#54), a limited discovery

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order (#55), an order of admonishment (#56), an order to be allowed to serve summons and complaint

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(#58), and to supplement amended complaint (#59), a reply in support of his motion to extend prison

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copy limit (#57), and an amended complaint (#60). On March 29, 2013, defendants filed a response to

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the plaintiff’s motion to formally address misunderstood claims (#48). (#61). The court issued an order

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on April 4, 2013, denying without prejudice plaintiff’s motion to extend copywork limit (#42),

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accepting defendants’ waiver of service (#50), and granting plaintiff’s motion to proceed without

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serving defendants (#43). (#62).

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On April 5, 2013, plaintiff filed a motion for a preliminary injunction (#63), a motion to “clearly

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establish as a claim that the plaintiff never submitted a “civil action” or a writ of habeas corpus” (#64),

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a request for judicial notice (#65), and a motion seeking this Honorable Court to request that the United

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States Attorney General conduct a formal investigation (#66).

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On April 8, 2013, the court issued a minute order striking plaintiff’s amended complaint (#60).

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(#67). On the same day, the defendants filed a motion to stay plaintiff’s dispositive motion or for

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enlargement of time. (#68). On April 10, 2013, plaintiff filed objections to the court’s order (#62).

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(#70). On April 12, 2013, the defendants filed a motion (#71) to strike the plaintiff’s motion for

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preliminary injunction (#54) and the instant motion for a joint status conference (#73). On April 18,

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2013, plaintiff filed a motion (#75) to strike defendants’ motion to stay (#68), an objection (#76) to the

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court’s order (#62), an objection (#77) to the court’s minute order (#67), and a response (#78) to the

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defendants’ motion to stay (#68).

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Motion For A Limited Discovery Order (#55)

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A.

Argument

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Plaintiff’s motion for a limited discovery order asks this court to order defendants to provide

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plaintiff with the identities of all “meat compan[ies] in which the Nevada Department of Corrections

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has ordered and or purchased meat products from in the last ten years [so] these compan[ies] can be

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served a summons and complaint.” (#55). Plaintiff does not indicate that he sought this discovery from

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defendants before seeking the court’s intervention. Id.

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B.

Relevant Law/Discussion

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Pursuant to Local Rule 16-1(b), no discovery plan is required in actions by or on behalf of

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inmates under 42 U.S.C. § 1983, and “a scheduling order shall be entered within thirty (30) days after

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the first defendant answers or otherwise appears.” “Unless otherwise ordered by the court, written

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discovery, including responses thereto, and deposition transcripts, shall not be filed with the court.”

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Local Rule 26-8. Local Rule 26-7(b) provides that “[d]iscovery motions will not be considered unless

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a statement of the movant is attached thereto certifying that, after personal consultation and sincere

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effort to do so, the parties have been unable to resolve the matter without Court action.” Pro se

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plaintiffs are held to a less stringent standard than those who are represented by counsel. Haines v.

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Kerner, 404 U.S. 519, 520, 92 S. Ct. 584 (1972). However, pro se plaintiffs are still required to

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familiarize themselves with the Federal Rules of Civil Procedure as well as the Local Rules of this

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court, and a failure to comply with these rules could warrant sanctions. See Jacobsen v. Filler, 790 F.2d

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1362, 1364-65 (9th Cir. 1986)(holding that pro se parties are not excused from following the rules and

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orders of the court).

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Plaintiff’s amended complaint was filed on March 5, 2013 (#47), and defendants first appeared1

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in this action on March 15, 2013, to file a response (#49) to plaintiff’s motion to extend copywork limit

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(#42). A notice of acceptance of service was filed on March 22, 2013 (#53). The defendants’ answers

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are due on or before May 21, 2013. (#53). Discovery has not commenced in this action. After

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conducting the status conference on May 20, 2013, as ordered below, the court will enter a scheduling

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order and the parties can begin discovery. Plaintiff is advised that he is not to file discovery requests

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or responses with the court, and that any motion to compel discovery will not be considered by the court

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unless plaintiff has made a good faith effort to resolve the issue with the defendants before filing the

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motion. See LR 16-1(b), 26-7(b), and 26-8; See also Jacobsen 790 F.2d at 1364-65.

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Motion For Joint Status Conference and Request to Stay Responses to Pending Motions (#73)

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A.

Arguments

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Defendants assert in their motion that as of the date of filing, thirty-one (31) motions have been

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filed in this action, “with the overwhelming majority of them coming from [p]laintiff.” (#73).

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Defendants state that “counsel has made a valiant effort to respond to [p]laintiff’s papers and pleadings

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up to this point, but [p]laintiff’s litigation tactics are now creating a hindrance to the litigation process

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and the just and speedy resolution of this case as well as others with which the Office of the Attorney

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The Attorney General’s Office appeared in this action on December 10, 2013, solely for purposes of
discussing settlement. (#32). On February 19, 2013, the Attorney General’s Office filed the report of the results of the
90-day stay. (#41). This was before the court granted in forma pauperis (#44) and the filing of plaintiff’s amended
complaint (#47).

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General is tasked to defend with limited time and resources.” Id. Defendants ask this court for a joint

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status conference “to obtain the [c]ourt’s direction in proceeding henceforth and perhaps in protecting

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[d]efendants from having to respond to papers intended solely to harass and unnecessarily prolong the

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litigation.” Id.

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B.

Discussion

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Plaintiff has filed thirty-six motions in this action. Plaintiff has nine (9) motions currently

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pending on the court’s docket. (#48, #55, #56, #58, #59, #63, #64, #66, and #75). Plaintiff has also

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filed three (3) objections to the court’s orders (#70, #76, and #77) and a motion for reconsideration of

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the court’s screening order (#45). Defendants have three pending motions on the court’s docket,

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including a motion to stay plaintiff’s dispositive motion (#68), motion to strike plaintiff’s preliminary

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injunction (#71), and the instant motion for joint status conference and request for stay (#73).

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As the court stated in its screening order, “[p]laintiff is a frivolous and vexatious litigant.”

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(#30). The Eighth Judicial District Court declared plaintiff to be a vexatious litigation in Bacon v.

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Laswell, 238 P.3d 794 (Nev. 2008), and the Nevada Supreme Court warned plaintiff in Bacon v. State,

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281 P.3d 1152 (Nev. 2009) that his continued frivolous attempts to obtain relief from his judgment of

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conviction could lead to a loss of credits in. Id. The Nevada Supreme Court eventually restricted

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plaintiff’s ability to file civil appeals or petitions for original writs. Id; Bacon v. Eighth Judicial Dist.

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Court, No. 58414 (April 25, 2012).

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Based on the court’s docket in this action, it appears that plaintiff has continued his vexatious

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litigation practices. The court’s screening order advising plaintiff that the court was aware of his

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litigation history (#30) did not deter plaintiff from unnecessarily filing multiple frivolous motions before

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the court entered a scheduling order or the defendants filed an answer. A status conference is scheduled

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for May 20, 2013, at 1:00 p.m., to discuss the proceedings with the parties and to hopefully avoid having

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to enter an order to show cause why plaintiff should not be deemed vexatious and the court should not

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dismiss the complaint. Briefing on all pending motions (#48, #56, #58, #59, #63, #64, #66, #68, #71,

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and #75) is stayed. Briefing is also stayed on any motions filed before the May 20, 2013, status

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conference.

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Accordingly, and for good cause shown,

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IT IS ORDERED that pro se plaintiff Percy Lavae Bacon’s Motion for A Limited Discovery

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Order (#55) is DENIED. The court will enter a scheduling order after conducting the status conference

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in this matter.
IT IS FURTHER ORDERED that defendants’ Motion For A Joint Status Conference and

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Request to Stay Responses to Pending Motions (#73) is GRANTED.
IT IS THEREFORE ORDERED that a status conference is scheduled for May 20, 2013, at 1:00

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p.m.

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IT IS FURTHER ORDERED that plaintiff will appear telephonically.

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IT IS FURTHER ORDERED that the Attorney General’s Office will make the necessary

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arrangements for plaintiff to appear by telephone and, at least two days prior to the hearing, will provide

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Jerry Ries, Courtroom Administrator, with the telephone number at which the Plaintiff can be reached.

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IT IS FURTHER ORDERED that briefing on all pending motions (#48, #56, #58, #59, #63, #64,

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#66, #68, #71, and #75) and on any motions filed before the May 20, 2013, status conference is

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STAYED.

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DATED this 22nd day of April, 2013.

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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