Helfrich v. Neven et al

Filing 139

ORDER Denying 4 Motion for Preliminary Injunction, 22 Emergency Motion for Preliminary Injunction, 25 Motion for Preliminary injunction, 26 Motion for Temporary Restraining Order, 41 Emergency Secondary Motion for Temporary Restraining Or der, 42 Emergency Secondary Motion for Preliminary Injunction, 89 Emergency Motion for Preliminary Injunction, 90 Motion for Temporary Restraining Order, 96 Motion for Temporary Restraining order, 105 Motion for Preliminary Injunction, [106 ] Motion for Temporary Restraining order. IT IS ORDERED that 30 Motion to Strike, 47 Motion to Strike, 51 Motion to Strike, 58 Motion to Strike, 61 Motion to Strike, 121 Motion for Leave to File Supplement, 133 Motion for Leave to F ile Supplement are DENIED as MOOT. IT IS ORDERED that 15 Motion for Leave to File Supplemental Exhibits, 43 Motion for Leave to File Amended Complaint and Secondary TRO and Preliminary Injunction, 85 Motion to Amend/Correct, 97 Motion for Preliminary Injunction are GRANTED in PART and DENIED in PART. See order for details. Signed by Judge Richard F. Boulware, II on 6/2/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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PETER J. HELFRICH,

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Plaintiff,

Case No. 2:14-cv-01725-RFB-NJK
ORDER

v.
DWIGHT NEVEN, et al.,

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Defendants.

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I. Introduction
On April 21, 2015, the Court set a hearing on several motions. ECF No. 93. This
hearing was rescheduled to accommodate briefing of four newly filed motions. ECF No. 109.
On May 26, the Court heard argument and ruled on twenty-three motions (the “Hearing”):
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Emergency Motion for Preliminary Injunction (ECF No. 4);
Emergency Motion to Amend [4] Motion for Preliminary Injunction (ECF No.
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Motion for Leave to File Supplement Exhibits (ECF No. 15);
Motion for Leave to File Supplement re: [4] Emergency Motion for Preliminary
Injunction (ECF No. 22);
Motion for Preliminary Injunction (ECF No. 25);
Motion for Temporary Restraining Order (ECF No. 26);
Motion to Strike [26] Motion for Temporary Restraining Order, [25] Motion for
Preliminary Injunction (ECF No. 30);
Emergency Secondary Motion for Temporary Restraining Order (ECF No. 41);
Emergency Secondary Motion for Preliminary Injunction (ECF No. 42);
Motion for Leave to File Amended Complaint and Secondary TRO and
Preliminary Injunction (ECF No. 43);
Motion to Strike [45] Response to [38] Response to [30] Motion (ECF No. 47);
Motion to Strike [42] Motion for Preliminary Injunction, [41] Motion for
Temporary Restraining Order (ECF No. 51);
Motion to Strike [51] Motion to Strike [42] Motion for Preliminary Injunction,
[41] Motion for Temporary Restraining Order (ECF No. 58);
Motion to Strike [51] MOTION to Strike [42] Motion for Preliminary Injunction,
[41] Motion for Temporary Restraining Order (ECF No. 61);
Motion to Amend/Correct (ECF No. 85);
Emergency Motion for Preliminary Injunction (ECF No. 89);

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Motion for Temporary Restraining Order (ECF No. 90);
Motion for Temporary Restraining Order (ECF No. 96);
Motion for Preliminary Injunction (ECF No. 97);
Motion for Preliminary Injunction (ECF No. 105);
Motion for Temporary Restraining Order (ECF No. 106);
Motion for Leave to File Supplement to Defendants' Partial Opposition to
Helfrich's Motion for Leave to Amend Complaint (ECF No. 121); and
Motion for Leave to File Supplement (ECF No. 133).

The Court ruled from the bench on all motions. This Order follows to summarize the
Court’s rulings.

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II. Motions

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A. The First Motion for Injunctive Relief and Related Motions
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1. Emergency Motion to Amend [4] Motion for Preliminary Injunction,
ECF No. 14

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For the reasons stated on the record at the Hearing, the Court construes Helfrich’s motion
to amend his motion for preliminary injunction as a request to supplement his original motion,
and the motion is granted insofar as it is a supplement to the original motion for preliminary
injunction.

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2. Motion for Leave to File Supplement Exhibits, ECF No. 15

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For the reasons stated on the record at the Hearing, the Court denies, in part, Helfrich’s

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motion to file supplemental exhibits. However, the Court also grants in part Helfrich’s motion

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for leave to file insofar as these exhibits may be refiled with a future amended complaint.

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3. Motion for Leave to File Supplement re: [4] Emergency Motion for
Preliminary Injunction, ECF No. 22

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For the reasons stated on the record at the Hearing, this motion is denied.

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4. Emergency Motion for Preliminary Injunction, ECF No. 4
For the reasons stated on the record at the Hearing, this motion for preliminary injunction
is denied without prejudice.
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B. Motions to Amend the Complaint and Related Motion

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1. Motion for Leave to File Amended Complaint and Secondary TRO
and Preliminary Injunction, ECF No. 43, and Motion to
Amend/Correct, ECF No. 85

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For the reasons given on the record at the Hearing, the Court grants in part and denies in
part Helfrich’s motions to amend. The Court denies both of Helfrich’s proposed amended
complaints, ECF Nos. 43 and 85, but, because the Court thinks it appropriate to allow Helfrich
the opportunity to amend, Helfrich will have until July 15, 2015 to file a final amended
complaint. The Court will not screen the amended complaint, but Defendants will have thirty
days from the filing of the amended complaint to file appropriate responsive motions. Should
Helfrich fail to file a new amended complaint by July 15, 2015, the case will proceed under the
October 29, 2014, Amended Complaint, ECF No. 9.

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2. Motion for Leave to File Supplement to Defendants’ Partial
Opposition to Plaintiff's Motion for Leave to Amend Complaint, ECF
No. 121

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For the reasons stated on the record at the Hearing, Defendants’ motion to supplement

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earlier briefing on the matter is denied as moot. Defendants may make their arguments, if

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appropriate, in response to Helfrich’s final amended complaint.

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C. The Second, Third, Fourth, and Sixth Set of Motions for Injunctive Relief
and Related Motions

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1. Motion for Preliminary Injunction, ECF No. 25; Motion for
Temporary Restraining Order, ECF No. 26; Emergency Secondary
Motion for Temporary Restraining Order, ECF No. 41; Emergency
Secondary Motion for Preliminary Injunction, ECF No. 42;
Emergency Motion for Preliminary Injunction, ECF No. 89; Motion
for Temporary Restraining Order, ECF No. 90; Motion for
Preliminary Injunction, ECF No. 105; and Motion for Temporary
Restraining Order, ECF No. 106

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For the reasons stated on the record at the Hearing, these motions for injunctive relief are

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denied.

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2. Motion to Strike [26] Motion for Temporary Restraining Order, [25]
Motion for Preliminary Injunction, ECF No. 30; Motion to Strike [45]
Response to [38] Response to [30] Motion, ECF No. 47; Motion to
Strike [42] Motion for Preliminary Injunction, [41] Motion for
Temporary Restraining Order, ECF No. 51; Motion to Strike [51]
Motion to Strike [42] Motion for Preliminary Injunction, [41] Motion
for Temporary Restraining Order, ECF No. 58; Motion to Strike [51]
Motion to Strike [42] Motion for Preliminary Injunction, [41] Motion
for Temporary Restraining Order, ECF No. 61; Motion for Leave to
File Supplement, ECF No.133
For the reasons stated on the record at the Hearing, these motions, related to the denied
motions for injunctive relief, are themselves denied as moot.

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D. The Fifth Set of Motions for Injunctive Relief
1. Motion for Temporary Restraining Order, ECF No. 96
For the reasons stated on the record at the Hearing, this motion is denied.

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2. Motion for Preliminary Injunction, ECF No 97

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After careful consideration, the Court finds this motion is most appropriately construed as

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a motion to compel. While the Court had initially at the hearing construed and ruled on this

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motion as if it were a preliminary injunction motion, the Court finds this framework to be less

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consistent with the motion and appropriate legal framework. For the reasons stated on the record

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at the Hearing and elaborated herein, this motion to compel is granted in part and denied in part.

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Helfrich has not received the sets of the Federal Rules of Civil Procedure and Nevada

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Rules of Civil Procedure (the “Material”) that he ordered that were shipped to him from

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Thompson Reuters. The Court finds that the Material was delivered to High Desert State Prison

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(the “Prison”) but not subsequently delivered to Helfrich. The current disposition of the Material

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is unclear; the Material is either still in the possession of the Prison or has been disposed of by

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the Prison without discussion with—or the consent of—Helfrich.

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disciplinary segregation and does not have access to legal materials in the Prison’s law library.

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Defense counsel indicated at the Hearing that she was uncertain when disciplinary segregation

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would end; she estimated a month or so. In the instant case, discovery is ongoing and is

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presently scheduled for 90 days, ending July 6, 2015.

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Presently, Helfrich is in

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Helfrich has a right to access legal materials, especially those which he purchased

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himself, and is entitled to the Material. Helfrich made efforts to obtain the Material and was

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thwarted by the Prison. Therefore the Court finds it appropriate for the Prison to replace the

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Material, which the Prison either has in its possession or has disposed of.

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Accordingly, Defendants are ordered to provide to Helfrich within thirty days an

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annotated soft-copy of Federal Rule of Civil Procedure 26. Defendants may deliver the soft-

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copy either all at once or alternatively on a regular basis in divisions of no fewer than 50 pages at

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a time, such that by the end of thirty days Helfrich has had an opportunity to review Rule 26.

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Defendants are further ordered to review Prison logs and, using the tracking number and

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delivery information available, to determine whether and how the Books came into the Prison,

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what happened to the Books, and the current disposition of the Books. If the Books are at the

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Prison, the Books should be delivered to Helfrich.

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Defendants will report to Helfrich and file with the Court a supplement describing what has

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happened to the Books, within thirty days.

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If not, re-delivery is to be arranged.

This motion is denied as to all other issues raised.

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III. Conclusion
IT IS THEREFORE ORDERED that

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1. Emergency Motion for Preliminary Injunction, ECF No. 4, is DENIED
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without prejudice.
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2. Emergency Motion to Amend [4] Motion for Preliminary Injunction, ECF
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No. 14, is construed as a motion to supplement and is GRANTED.
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3. Motion for Leave to File Supplement Exhibits, ECF No. 15, is DENIED
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IN PART and GRANTED IN PART. The supplemental exhibits are
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presently improperly filed but may be refiled with an amended complaint.
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4. Motion for Leave to File Supplement re: [4] Emergency Motion for
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Preliminary Injunction, ECF No. 22, is DENIED.
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5. Motion for Preliminary Injunction, ECF No. 25, is DENIED.
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6. Motion for Temporary Restraining Order, ECF No. 26, is DENIED.
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7. Motion to Strike [26] MOTION for Temporary Restraining Order, [25]

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Motion for Preliminary Injunction, ECF No. 30, is DENIED as moot.

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8. Emergency Secondary Motion for Temporary Restraining Order, ECF No.

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41, is DENIED.
9. Emergency Secondary Motion for Preliminary Injunction, ECF No. 42, is
DENIED.

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10. Motion for Leave to File Amended Complaint and Secondary TRO and

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Preliminary Injunction, ECF No. 43, is DENIED in part and GRANTED

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in part. Plaintiff shall have until July 15, 2015, to file an amended

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complaint. Defendants will then have 30 days to file responses.
11. Motion to Strike [45] Response to [38] Response to 30 Motion, ECF No.
47, is DENIED as moot.
12. Motion to Strike [42] Motion for Preliminary Injunction, [41] Motion for
Temporary Restraining Order, ECF No. 51, is DENIED as moot.

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13. Motion to Strike [51] Motion to Strike [42] Motion for Preliminary

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Injunction, [41] Motion for Temporary Restraining Order, ECF No. 58, is

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DENIED as moot.

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14. Motion to Strike [51] Motion to Strike [42] Motion for Preliminary

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Injunction, [41] Motion for Temporary Restraining Order, ECF No. 61, is

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DENIED as moot.

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15. Motion to Amend/Correct, ECF No. 85, is DENIED in part and

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GRANTED in part. Plaintiff shall have until July 15, 2015, to file an

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amended complaint. Defendants will then have 30 days to file responses.

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16. Emergency Motion for Preliminary Injunction, ECF No. 89, is DENIED.

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17. Motion for Temporary Restraining Order, ECF No. 90, is DENIED.

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18. Motion for Temporary Restraining Order, ECF No. 96, is DENIED.

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19. Motion for Preliminary Injunction, ECF No. 97, is construed as a motion

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to compel and is GRANTED in part and DENIED in part. Defendants

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are ordered to provide Helfrich a soft-copy of the annotated Federal Rule

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of Civil Procedure 26 within thirty days. Defendants are further ordered

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to determine what happened to the Books, report their findings to Helfrich,

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and file with the Court a supplement explaining their findings, within

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thirty days.

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20. Motion for Preliminary Injunction, ECF No. 105, is DENIED.

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21. Motion for Temporary Restraining Order, ECF No. 106, is DENIED.

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22. Motion for Leave to File Supplement, ECF No 121, is DENIED as moot.

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23. Motion for Leave to File Supplement, ECF No.133, is DENIED as moot.

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DATED: June 2, 2015.

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RICHARD F. BOULWARE, II
United States District Judge

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