Helfrich v. Neven et al

Filing 163

ORDER that 135 Motion to Compel is DENIED as moot; 136 Motion to Compel is DENIED; and 155 Motion to Extend Time is GRANTED in part and DENIED in part. Signed by Magistrate Judge Nancy J. Koppe on 8/6/15. (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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PETER J. HELFRICH,

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Presently before the Court is Plaintiff’s motion to compel discovery of full name of John Doe

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SGT. who denied Plaintiff’s emergency grievance filed 8/22/2014 (Docket No. 135); Plaintiff’s

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motion to compel the ability to conduct interrogatories/admissions of all inmate witnesses, or in the

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alternate, motion to appoint counsel (Docket No. 136); and Plaintiff’s motion to enlarge time to

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amend complaint (Docket No. 155). The Court will address each motion below.

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I.

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Plaintiff(s),
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vs.
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DWIGHT NEVEN, et al.,
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Defendant(s).

Case No. 2:14-cv-01725-RFB-NJK
ORDER
(Docket Nos. 135, 136, 155)

MOTION TO COMPEL FULL NAME OF JOHN DOE SGT (Docket No. 135)

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Pending before the Court is Plaintiff’s motion to compel discovery of full name of John Doe

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SGT. who denied Plaintiff’s emergency grievance filed 8/22/2014. Docket No. 135. Defendants

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filed a response. Docket No. 144. Plaintiff did not file a reply. See Docket.

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Plaintiff requests an order compelling Defendants to disclose the name of the sergeant that

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denied his emergency medical grievance on August 22, 2014. Docket No. 135. Plaintiff represents

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that this information is necessary in order to get the sergeant’s testimony which he submits is critical

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to his claims in this case. Id., at 3. Defendants represent that they have already provided Plaintiff

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this information in their response to Plaintiff’s interrogatory. Docket No. 144. Specifically,

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Defendants assert that on May 21, 2015, they timely responded to Plaintiff’s interrogatory and

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answered that “Sergeant Robert Owens denied Plaintiff’s Emergency Grievance dated August 22,

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2014.” Id., at 2; Docket No. 144-1, at 3.

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Parties are required to engage in good faith efforts to resolve discovery disputes. See Local

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Rule 26-7(b). “Discovery motions will not be considered unless a statement of the movant is

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attached thereto certifying that, after personal consultation and sincere effort to do so, the parties

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have been unable to satisfactorily resolve the matter.” Local Rule 26-7(b). “The purpose of [the

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meet and confer] rules is simple: to lessen the burden on the court and reduce the unnecessary

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expenditure of resources by litigants, through promotion of informal, extrajudicial resolution of

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discovery disputes.” Nevada Power Co. v. Monsanto Co., 151 F.R.D. 118, 120 (D. Nev. 1993).

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Plaintiff failed to attach a certification as required under Local Rule 26-7, and it appears that Plaintiff

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did not attempt to resolve this dispute with Defendants’ counsel before filing this motion. See

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Docket No. 135. Because Defendants have already provided an answer to the information sought

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in Plaintiff’s motion to compel, Plaintiff’s motion to compel discovery of full name of John Doe

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SGT. who denied Plaintiff’s emergency grievance filed 8/22/2014 (Docket No. 135) is hereby

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DENIED as moot.

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II.

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MOTION TO COMPEL THE ABILITY TO CONDUCT INTERROGATORIES/
ADMISSIONS OF INMATE WITNESSES, OR IN THE ALTERNATIVE, MOTION
TO APPOINT COUNSEL (Docket No. 136)

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Pending before the Court is Plaintiff’s motion to compel the ability to conduct

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interrogatories/admissions of inmate witnesses, or in the alternative, to appoint counsel. Docket No.

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136. Defendants filed a response. Docket No. 146. No reply was filed. See Docket.

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Plaintiff is permitted to seek discovery from Defendants pursuant to the scheduling order.

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However, Defendants represent that, pursuant to Administrative Regulation 750.04, correspondence

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between inmates is prohibited unless they are co-parties. Docket No. 146, at 3; Docket No. 146-2,

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at 9 (“Legal correspondence between NDOC incarcerated persons is allowed if they are co-

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defendants or co-plaintiffs in active post conviction litigation or pursuant to court order is also

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allowed”). Here, Plaintiff requests the ability to serve interrogatories and requests for admissions
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on inmate witnesses. Docket No. 136.

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On May 4, 2015, Defendants represented that they would contact the named inmates to

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procure their declarations concerning their observations of the morning of September 24, 2014, and

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submit them to Plaintiff. Docket No. 116, at 3. However, Federal Rule of Civil Procedure 26

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governs discovery between parties in an action and, as a result, Defendants cannot compel non-

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parties to respond to Plaintiff’s discovery requests. Additionally, as explained above, before filing

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a motion to compel, Plaintiff is required to conduct a proper meet and confer with Defendants’

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counsel and attach a certification to his discovery motion as required under Local Rule 26-7.

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Plaintiff has failed to attach such a certification to the pending motion. See Docket No. 136.

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In the alternate, Plaintiff requests that counsel be appointed to conduct discovery of all

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inmate witnesses. It appears that Plaintiff is actually requesting the Court to reconsider its Order at

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Docket No. 84, denying his motion for appointment of counsel. Docket No. 136, at 4 (“[A]ny

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layman can see what an unfair advantage Plaintiff has trying to prove his case without the aid of

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counsel”). In that Order, the Court found that Plaintiff had not established that he is likely to succeed

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on the merits, or that the legal issues involved are too complex to be presented adequately without

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assistance of counsel. Docket No. 84. The Court also noted that in Plaintiff incorrectly cited Third

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Circuit case law and that it would apply the standard adopted by the Ninth Circuit in determining a

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motion for appointment of counsel. Id.

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Reconsideration is appropriate if the court: (1) is presented with newly discovered evidence;

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(2) committed clear error, or the initial decision was manifestly unjust; or (3) if there is an

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intervening change in controlling law. Dixon v. Wallowa County, 336 F.3d 1013, 1022 (9th Cir.

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2003). Plaintiff’s motion to reconsider does not cite, let alone attempt to comply with, the applicable

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standards. Reconsideration is “an extraordinary remedy, to be used sparingly and in the interests of

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finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d

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877, 890 (9th Cir. 2000) (internal quotation marks omitted).

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Accordingly, for the reasons state above, Plaintiff’s motion to compel ability to conduct

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interrogatories/admissions of inmate witnesses, or in the alternative, to appoint counsel (Docket No.

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136) is hereby DENIED.
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III.

MOTION TO ENLARGE TIME TO FILE AMENDED COMPLAINT (Docket No.
155)

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Also pending before the Court is Plaintiff’s motion to enlarge time to file an amended

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complaint, filed on July 20, 2105. Docket No. 155. On August 5, 2015, Defendants filed a limited

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opposition to Plaintiff’s motion to enlarge. Docket No. 162.

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On May 26, 2015, the Court granted Plaintiff’s motion for leave to file an amended complaint

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at Docket No. 43. See Docket Nos. 138, 139. The Court ordered that Plaintiff had until July 15,

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2015, to file an amended complaint. Docket Nos. 138, 139. Plaintiff filed the pending motion to

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enlarge after the July 15, 2015, deadline for him to file his amended complaint. Docket No. 155.

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Plaintiff also filed his final amended complaint on July 20, 2015. Docket No. 157. Nonetheless,

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Plaintiff represents that he needs 60 extra days to complete his amended complaint to review medical

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records and to obtain interrogatories from witnesses. Docket No. 155, at 2. Defendants do not

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oppose Plaintiff’s filing of the July 20, 2015, amended complaint, but do oppose a longer extension.

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Docket No. 162, at 2.

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Pursuant to Local Rule 6-1(b), requests for extensions of time “made after the expiration of

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the specified period shall not be granted unless the moving party . . . demonstrates that the failure

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to act was the result of excusable neglect.” The Court finds good cause and excusable neglect exist

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to extend the deadline to file an amended complaint to July 20, 2015, but do not exist for any further

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extensions. Accordingly, Plaintiff’s motion to enlarge time to file an amended complaint (Docket

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No. 155) is hereby GRANTED in part and DENIED in part.

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IV.

CONCLUSION

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Based on the foregoing:

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IT IS SO ORDERED:

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1.

Plaintiff’s motion to compel discovery of full name of John Doe SGT. who denied

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Plaintiff’s emergency grievance filed 8/22/2014 (Docket No. 135) is DENIED as

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moot.

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2.

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Plaintiff’s motion to compel ability to conduct interrogatories/admissions of inmate
witnesses, or in the alternative, to appoint counsel (Docket No. 136) is DENIED.

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Plaintiff’s motion to enlarge time to file an amended complaint (Docket No. 155) is
GRANTED in part and DENIED in part.

DATED: August 6, 2015

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NANCY J. KOPPE
United States Magistrate Judge

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