Ackerman v. State of Nevada Department of Corrections et al

Filing 10

ORDER Granting 3 Motion to Amend Complaint. The Clerk of Court shall file Plaintiffs Amended Complaint. Defendants shall file a responsive pleading no later than July 31, 2014. Granting 5 Motion to Extend Time. Denying [7 ] Motion to File Surreply.Granting 8 Motion to Withdraw Attorney Cal J. Potter, III. Attorney designation deadline: 7/31/2014. Signed by Magistrate Judge Peggy A. Leen on 6/30/2014. (Copies have been distributed pursuant to the NEF; CC: Plaintiff - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HOWARD ACKERMAN,

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Plaintiff,

ORDER

v.

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Case No. 2:14-cv-00019-GMN-PAL

(Mtn to Amend – Dkt. #3)
(Mtn for Extension – Dkt. #5)
(Mtn to File Surreply – Dkt. #7)
(Mtn to Withdraw – Dkt. #8)

STATE OF NEVADA DEPARTMENT OF
CORRECTIONS, et al.,

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Defendants.

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This matter is before the court on Plaintiff Howard Ackerman’s Motion to File Updated

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Amended Complaint (Dkt. #3), Ackerman’s Motion for Extension of Time (Dkt. #5), Defendants

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Catherine Cortez-Masto, Gregory Cox, Ross Miller, Nevada Department of Corrections

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(“NDOC”), and Brian Sandoval’s Motion for Leave to File Surreply (Dkt. #7), and the Motion to

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Withdraw as Counsel of Record (Dkt. #8). The court has considered the Motions, Defendants’

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Response (Dkt. #4), Ackerman’s Reply (Dkt. #6), and Defendants’ Non-Opposition (Dkt. #9).

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Ackerman is an inmate in the NDOC, and on June 1, 2011, he initiated a lawsuit against

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various defendants, asserting that they terminated NDOC’s kosher meal plan in violation of the

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Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1(a). See Case No.

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2:11-cv-00883-GMN-PAL (the “Kosher Meal Case”). Plaintiff sought leave to file an amended

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complaint in the Kosher Meal Case to assert retaliation claims against certain defendants. On

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January 6, 2014, the district judge in the Kosher Meal Case granted Plaintiff’s Motion to Amend

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the Complaint and severed the retaliation claim set forth in count two. See Minutes of

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Proceeding in Kosher Meal Case (Dkt. #286). The district judge directed the Clerk of Court to

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file the Second Amended Complaint under a new case number. Id.

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The Clerk of Court complied and opened the instant case (the “Retaliation Case”). See

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Minutes of Proceeding (Dkt. #2); Second Amended Complaint (Dkt. #1). On January 9, 2014,

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Ackerman filed the Motion to Amend the Complaint, seeking to update the complaint to include

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allegations that he had exhausted his administrative remedies prior to filing the retaliation claim.

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Defendants filed a limited Opposition (Dkt. #4) noting that Ackerman had not complied with LR

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15-1(a) and failed include a copy of the proposed amended complaint. However, Defendants

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assert that to the extent the amended complaint is the same as the Amended Complaint (11-cv-

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883, Dkt. #228) filed in the Kosher Meal Case, they do not oppose Plaintiff’s request.

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Ackerman’s Reply (Dkt. #6) attaches a copy of the proposed amended complaint.1 Defendants

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filed a Motion for Leave to File a Surreply (Dkt. #7), asserting they were deprived of an

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opportunity to oppose Plaintiff’s Motion to Amend because the proposed amended complaint

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was not attached to the Motion for Leave to Amend as required by LR 15-1(a).

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Rule 15 of the Federal Rules of Civil Procedure governs amended pleadings and

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provides that a party may amend its pleading once as a matter of course within twenty-one days

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after serving it. See Fed. R. Civ. P. 15(a)(1)(A). In all other cases, the court can grant leave to

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amend a pleading, and “[t]he court should freely give leave when justice so requires.” Fed. R.

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Civ. P. 15(a)(2). This case was initiated when the district judge directed the Clerk to open a new

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case and file the Second Amended Complaint from the Kosher Meal Case. Although the Kosher

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Meal Case had been pending for some time, this case was initiated by the filing of the Second

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Amended Complaint. Three days later, Ackerman sought leave to amend the complaint. The

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court finds that under Rule 15(a)(1)(A), Ackerman was not required to seek leave to file an

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amended complaint. He was entitled to file an amended complaint as a matter of course. Even

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assuming he were not, Rule 15 instructs that leave to amend should be freely granted when

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justice requires. This is such a case. The district judge instructed this case to be separately

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opened to adjudicate Ackerman’s retaliation claim. To prohibit him from amending his

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retaliation claim, which the district judge specifically severed from the first case would frustrate

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1 Ackerman’s Reply was not timely filed. However, he filed an Unopposed Motion to Extend Time (Dkt. #4),

which the court will grant.

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the purpose of opening this Retaliation Case in the first instance. Accordingly, Plaintiff’s

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Motion to Amend (Dkt. #3) is granted. The court will direct the Clerk to file the Amended

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Complaint, attached as Exhibit 1 to the Motion to Amend (Dkt. #3). Defendants shall file a

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responsive pleading no later than July 31, 2014.
Finally, Cal J. Potter, III, and C.J. Potter, IV, seek to withdraw as counsel of record for

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Plaintiff Howard Ackerman. The Motion represents that counsel represents Plaintiff in this case

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and in a federal habeas case. In the course of counsel’s post-conviction representation, a conflict

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has arisen, and counsel must withdraw. The court accepts counsel’s representation that he has a

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conflict. Local Rule IA 10-6 provides that “no withdrawal … shall be approved if delay of

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discovery, the trial or any hearing in the case would result.”

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Having reviewed and considered the matter,

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IT IS ORDERED

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1.

The Motion for Leave to Amend (Dkt. #3) is GRANTED. The Clerk of Court

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shall file Plaintiff’s Amended Complaint, attached as Exhibit 1 to the Motion for

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Leave to Amend (Dkt. #3).

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2.

Defendants shall file a responsive pleading no later than July 31, 2014.

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3.

Plaintiff’s Unopposed Motion for Extension of Time (Dkt. #5) is GRANTED.

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4.

Defendants’ Motion to File Surreply (Dkt. #7) is DENIED.

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5.

The Motion to Withdraw (Dkt. #8) is GRANTED.

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Plaintiff shall have until July 31, 2014, in which to retain new counsel who shall

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file a notice of appearance in accordance with Local Rules of Practice or to file a

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statement that he will proceed pro se.
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Failure to comply with this order may result in recommendation to the district
judge for sanctions, including case-dispositive sanctions.

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8.

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The Clerk of Court shall serve a copy of the Order on Plaintiff at:
Howard Ackerman #87392
Lovelock Correctional Center
1200 Prison Road
Lovelock, NV 89419

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Dated this 30th day of June, 2014.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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