Collins v. Hendrix et al

Filing 18

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. The Clerk of the Court shall SEND a copy of this order to the Finance Division of the Clerk's Office and to the attention of the Chief of Inmate Services for the Nevada Department of Corrections. FURTHER ORDERED that 13 Motion for Leave to Amend is granted in part. The Clerk of the Court shall detach and file the second amended complaint (ECF No. 13-1) in a separate docket entry. The second amended comp laint is now the operative complaint in this case. FURTHER ORDERED that 14 Motion to Strike is granted in part. The Clerk of the Court shall seal the motion for leave to amend (ECF No. 13). The Clerk of the Court shall electronically SERVE a copy of this order and a copy of Plaintiff's second amended complaint (ECF No. 13-1) on the Office of the Attorney General of the State of Nevada, attention Kat Howe. Within twenty-one (21) days of the date of entry of this order, the Attorney Genera l's Office shall file a notice advising the Court and Plaintiff regarding acceptance of service. The Motion to Compel 8 is denied as moot. Signed by Magistrate Judge Carl W. Hoffman on 12/15/16. (Copies have been distributed pursuant to the NEF - MMM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9
10
11
12
13

LEROY COLLINS,

)
)
Plaintiff,
)
)
v.
)
)
PATRICK HENDRICKS et al.,
)
)
Defendants.
)
)
___________________________________ )

2:15-cv-01696-JCM-CWH
ORDER

14

This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a state

15

prisoner. Plaintiff has submitted an application to proceed in forma pauperis. (ECF No. 1).

16

Based on the financial information provided, the Court finds that Plaintiff is unable to prepay

17

the full filing fee in this matter.

18

The Court entered a screening order on September 14, 2016. (ECF No. 5). The

19

screening order imposed a 90-day stay and the Court entered a subsequent order in which the

20

parties were assigned to mediation by a court-appointed mediator. (ECF No. 5, 7). The Office

21

of the Attorney General has filed a status report indicating that settlement has not been

22

reached and informing the Court of its intent to proceed with this action. (ECF No. 17).

23

On October 20, 2016, Plaintiff filed a motion to compel the Attorney General’s Office

24

to provide Plaintiff with the last known addresses of Defendants. (ECF No. 8). The Court

25

denies this motion as moot. This order discusses procedures for providing last known

26

addresses of Defendants.

27
28

On November 10, 2016, Plaintiff filed a motion for leave to file an amended complaint
and attached a proposed second amended complaint. (ECF No. 13, 13-1). In the motion,

1

Plaintiff requests leave to file an amended complaint for the purpose of correcting the spelling

2

of Defendant Hendrix’s last name to “Hendricks.” (ECF No. 13 at 1). In the motion, Plaintiff

3

notes that Hendricks is a former NDOC employee and lists the address of Patrick Hendricks’s

4

current employer. (Id. at 2). The proposed second amended complaint (ECF No. 13-1) is

5

identical to the first amended complaint (ECF No. 4) with the exception of the first page of the

6

second amended complaint. The first page of the second amended complaint changes the

7

name “Hendrix” to “Hendricks.” (Compare ECF No. 4 at 1, with ECF No. 13-1 at 1).

8

On November 14, 2016, Defendants filed a motion to strike Plaintiff’s motion for leave

9

to amend complaint. (ECF No. 14). In the motion, Defendants note that Plaintiff’s motion was

10

filed in violation of the stay. (Id. at 2). Defendants also note that putting identifiable

11

information about a current or former NDOC employee into the public domain causes

12

significant security and safety concerns. (Id. at 2-3). Defendants request that the Court strike

13

Plaintiff’s motion or place the motion under seal to ensure that Hendricks’s address be stricken

14

from the public record. (Id. at 3).

15

The Court now grants in part Plaintiff’s motion to file a second amended complaint.

16

(ECF No. 13). The Court also grants Defendants’ motion to place the motion to amend (ECF

17

No. 13) under seal. (ECF No. 14). The operative complaint will be the second amended

18

complaint (ECF No. 13-1). The Court will not issue a subsequent screening order on the

19

second amended complaint because it is identical in substance to the first amended

20

complaint. The parties shall reference the screening order from September 14, 2016. (ECF

21

No. 5).

22

For the foregoing reasons, IT IS ORDERED that:

23

1.

Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is GRANTED.

24

Plaintiff shall not be required to pay an initial installment of the filing fee. In the event that this

25

action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2).

26

2.

The movant herein is permitted to maintain this action to conclusion without the

27

necessity of prepayment of any additional fees or costs or the giving of security therefor. This

28

order granting leave to proceed in forma pauperis shall not extend to the issuance and/or
2

1
2

service of subpoenas at government expense.
3.

Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall

3

pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding

4

month’s deposits to Plaintiff’s account (Leroy Collins, #13022), in the months that the account

5

exceeds $10.00, until the full $350.00 filing fee has been paid for this action. The Clerk of the

6

Court shall SEND a copy of this order to the Finance Division of the Clerk’s Office. The Clerk

7

of the Court shall also SEND a copy of this order to the attention of the Chief of Inmate

8

Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV 89702.

9

4.

The motion for leave to amend (ECF No. 13) is granted in part. The Clerk of the

10

Court shall detach and file the second amended complaint (ECF No. 13-1) in a separate

11

docket entry. The second amended complaint is now the operative complaint in this case.

12
13
14

5.

The motion to strike (ECF No. 14) is granted in part. The Clerk of the Court shall

seal the motion for leave to amend (ECF No. 13).
6.

The Clerk of the Court shall electronically SERVE a copy of this order and a copy

15

of Plaintiff’s second amended complaint (ECF No. 13-1) on the Office of the Attorney General

16

of the State of Nevada, attention Kat Howe.

17

7.

Subject to the findings of the screening order (ECF No. 5), within twenty-one

18

(21) days of the date of entry of this order, the Attorney General’s Office shall file a notice

19

advising the Court and Plaintiff of: (a) the names of the defendants for whom it accepts

20

service; (b) the names of the defendants for whom it does not accept service, and (c) the

21

names of the defendants for whom it is filing the last-known-address information under seal.

22

As to any of the named defendants for whom the Attorney General’s Office cannot accept

23

service, the Office shall file, under seal, but shall not serve the inmate Plaintiff the last known

24

address(es) of those defendant(s) for whom it has such information. If the last known address

25

of the defendant(s) is a post office box, the Attorney General's Office shall attempt to obtain

26

and provide the last known physical address(es).

27
28

8.

If service cannot be accepted for any of the named defendant(s), Plaintiff shall

file a motion identifying the unserved defendant(s), requesting issuance of a summons, and
3

1

specifying a full name and address for the defendant(s). For the defendant(s) as to which the

2

Attorney General has not provided last-known-address information, Plaintiff shall provide the

3

full name and address for the defendant(s).

4

9.

If the Attorney General accepts service of process for any named defendant(s),

5

such defendant(s) shall file and serve an answer or other response to the complaint within

6

sixty (60) days from the date of this order.

7

10.

Henceforth, Plaintiff shall serve upon defendant(s) or, if an appearance has been

8

entered by counsel, upon their attorney(s), a copy of every pleading, motion or other document

9

submitted for consideration by the Court. Plaintiff shall include with the original document

10

submitted for filing a certificate stating the date that a true and correct copy of the document

11

was mailed or electronically filed to the defendants or counsel for the defendants. If counsel

12

has entered a notice of appearance, Plaintiff shall direct service to the individual attorney

13

named in the notice of appearance, at the physical or electronic address stated therein. The

14

Court may disregard any document received by a district judge or magistrate judge which has

15

not been filed with the Clerk, and any document received by a district judge, magistrate judge,

16

or the Clerk which fails to include a certificate showing proper service.

17

11.

The motion to compel (ECF No. 8) is denied as moot.

18
19

DATED: December 15, 2016.

20
21

_________________________________
United States Magistrate Judge

22
23
24
25
26
27
28
4