Gayler v. Neven et al

Filing 45

ORDER Denying 10 Motion to Compel.; Denying 20 Motion to Appoint Counsel. ; Denying 22 Motion to Strike. Signed by Judge Andrew P. Gordon on 9/26/16. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRANDYN WILLIAM GAYLER,

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Case No. 2:15-cv-00972-APG-CWH

Petitioner,
v.
WARDEN NEVEN, et al.,

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Respondents.

ORDER DENYING (1) MOTION TO
COMPEL, (2) MOTION FOR
APPOINTMENT OF COUNSEL, AND
(3) MOTION TO STRIKE
(ECF Nos. 10, 20, 22)

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Petitioner Brandyn Gayler moved to compel a copy of the first amended judgment of

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conviction in his underlying criminal proceedings. ECF No. 10. The respondents provided that

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document as an exhibit to their motion to dismiss. ECF No. 13-28. I therefore deny Gayler’s

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motion to compel as moot.

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Gayler also moved for appointment of counsel. ECF No. 20. I previously denied a similar

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request (ECF No. 7) and there is no basis to reconsider that decision. I therefore deny Gayler’s

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motion to appoint counsel.

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Finally, Gayler moves to strike the respondents’ reply brief related to the motion to

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dismiss. Gayler argues the court did not order the respondents to file a reply. ECF No. 22. He

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also argues the respondents did not address all claims presented in the petition and supplements as

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ordered.

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My prior order directed the respondents to answer or “otherwise respond to” Gayler’s

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petition and the supplements. ECF No. 7 at 3. The respondents otherwise responded by filing a

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motion to dismiss. A reply ordinarily is permitted when filing a motion to dismiss. Thus, the fact

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that I did not specifically mention a reply brief in my order does not warrant striking the

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respondents’ reply brief. Additionally, I directed the respondents to “address all claims presented

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in the petition and supplements.” Id. By that I meant that the respondents should respond to the

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claims in both the petition and in all supplements that had been filed. I did not mean that the

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respondents had to address claims in a motion to dismiss even if they were not moving to dismiss

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those claims. I therefore deny Gayler’s motion to strike.

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IT IS THEREFORE ORDERED that plaintiff Brandyn Gayler’s motion to compel (ECF
No. 10) is DENIED.
IT IS FURTHER ORDERED that plaintiff Brandyn Gayler’s motion for appointment of
counsel (ECF No. 20) is DENIED.
IT IS FURTHER ORDERED that plaintiff Brandyn Gayler’s motion to strike (ECF No.
22) is DENIED.
DATED this 26th day of September, 2016.

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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