Wilk v. Neven et al

Filing 103

ORDER VACATING 87 Order and Denying 77 Motion for Summary Judgment pursuant to the 96 Ninth Circuit's Opinion. The Clerk is directed to reassign the Magistrate Judge and to forward this order to the pro bono liaison. Signed by Judge James C. Mahan on 7/24/2020. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:15-cv-01429-JCM-EJY Document 103 Filed 07/24/20 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT WILK,

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Plaintiff(s),

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Case No. 2:15-CV-1429 JCM (CWH)
ORDER

v.
DWIGHT NEVEN, et al.,

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Defendant(s).

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Presently before the court is the matter of Wilk v. Neven et al., case number 2:15-cv-01429-

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JCM-CWH. On November 14, 2017, the court granted summary judgment in favor of defendants

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Dwight Neven, Cary Leavitt, and Jennifer Nash. (ECF No. 87). Plaintiff Robert Wilk timely

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appealed. (ECF No. 89).

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In a published opinion, the Ninth Circuit reversed this court’s decision. (ECF Nos. 96

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(opinion); 98 (order denying rehearing en banc)). First, the Ninth Circuit held that a reasonable

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juror could find that all three defendants were subjectively aware of the substantial risk of serious

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harm to Wilk. (ECF No. 96 at 10–12). The court then held that “[a]ny reasonable prison official

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in the defendants’ position would know that the actions defendants took, and failed to take, violated

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the Eighth Amendment.” Id. at 13. Finally, the court determined that the facts of Wilk’s case “are

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James C. Mahan
U.S. District Judge

Case 2:15-cv-01429-JCM-EJY Document 103 Filed 07/24/20 Page 2 of 2

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‘materially similar’ to previous cases.” Id. at 14. The Ninth Circuit also provided as follows:

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We note that throughout proceedings in the district court, while he
was still incarcerated, Wilk struggled to obtain discovery from
defendants, who resisted turning over crucial documents such as his
institutional file and their records of housing classification meetings.
On remand, Wilk should have another opportunity to seek the
materials he requested previously, which have the potential to
identify or exclude the defendants. To assist with this process, we
encourage the district court to appoint him counsel. See Jones v.
Blanas, 393 F.3d 918, 936–37 (9th Cir. 2004).

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Id. at 14.
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Accordingly, the court vacates its order (ECF No. 87) and denies defendants’ motion for
summary judgment, consistent with the Ninth Circuit’s opinion (ECF No. 96). Pursuant to the
Ninth Circuit’s instructions, the court hereby refers this case to the pro bono program adopted in

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General Order 2019-07 for the purpose of identifying counsel willing to be appointed as pro bono
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counsel for Clark. The scope of the appointment will be for the sole purpose of representing and
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assisting Wilk with discovery in this case.
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In light of the Ninth Circuit’s instruction to appoint counsel to assist Wilk with discovery,

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a new scheduling order is necessary. The court notes that Magistrate Judge Hoffman has retired.
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Thus, this case must be assigned to a new magistrate judge.
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the court’s order (ECF

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No. 87) be, and the same hereby is, VACATED.
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IT IS FURTHER ORDERED that defendants’ motion for summary judgment (ECF No.

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77) be, and the same hereby is, DENIED.
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IT IS FURTHER ORDERED that this case is referred to the pro bono program for
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appointment for the purpose of assisting Wilk with discovery.
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The clerk of court is directed to forward this order to the pro bono liaison and assign this
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case to a new magistrate judge.
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DATED July 24, 2020.
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James C. Mahan
U.S. District Judge

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UNITED STATES DISTRICT JUDGE

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