Altheide v. Sandoval et al
Filing
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ORDER Granting 52 Motion to Lift Stay of Case. Signed by Magistrate Judge Brenda Weksler on 6/5/2020. (Copies have been distributed pursuant to the NEF - JQC)
Case 2:17-cv-02821-JCM-BNW Document 52 Filed 05/21/20 Page 1 of 6
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AARON D. FORD
Attorney General
KATLYN M. BRADY (Bar No. 14173)
Deputy Attorney General
State of Nevada
Office of the Attorney General
555 East Washington Ave., #3900
Las Vegas, Nevada 89101
(702) 486-0661 (phone)
(702) 486-3773 (fax)
E-mail: katlynbrady@ag.nv.gov
Attorneys for Defendants James Dzurenda,
Alexis Lozano, and Brian Williams
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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Plaintiff,
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vs.
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JAMES DZURENDA, et al.,
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Case No. 2:17-cv-02821-JCM-PAL
JASON ALTHEIDE,
UNOPPOSED MOTION TO LIFT STAY
AND PROCEED WITH DISCOVERY
(FIRST REQUEST)
Defendants.
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Defendants, James Dzurenda, Alexis Lozano, and Brian Williams, by and through
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counsel, Aaron D. Ford, Nevada Attorney General, and Katlyn M. Brady, Jr., Deputy
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Attorney General, submit this unopposed motion to lift the stay and proceed with discovery.
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BACKGROUND
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This matter centers on Plaintiff Jason Altheide’s (Altheide) inmate civil rights
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complaint. On February 28, 2019, this Court filed the scheduling order and set the
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discovery cut-off for May 29, 2019. ECF No. 27.
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On March 29, 2019, Altheide filed his Fifth Amended Complaint. ECF No. 29.
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However, this Court struck the Fifth Amended Complaint because it was not styled as a
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motion to amend. ECF No. 31.
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On May 8, 2019, Altheide filed a motion to file a Fifth Amended Complaint. ECF No.
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33. The parties then stipulated to stay discovery pending screening on the Fifth Amended
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Complaint. ECF No. 34. This Court subsequently granted the stay. ECF No. 35.
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On January 3, 2020, this Court entered its screening order on the Fifth Amended
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Complaint. ECF No. 38. The motion was granted to the extent Altheide can add John Doe
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I and John Doe II to his administrative segregation due process claim. ECF No. 38 at 3:7-
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12. The motion was denied in all other respects and this Court stated the Fourth Amended
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Complaint would remain the operative complaint. Id. Defendants subsequently filed an
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answer to the Fourth Amended Complaint. ECF No. 39.
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On May 13, 2020, Altheide and Defendant’s counsel conducted a meet and confer to
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discuss the best way to move this matter forward. The parties agreed to lift the stay and
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submit a new scheduling order. Specifically, the parties agreed to extend discovery 90 days
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from May 20, 2020 to August 18, 2020. Declaration of Counsel at 1:27-28. Further, the
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parties agreed to extend the deadline to file dispositive motions to September 17, 2020.
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Finally, Altheide agreed Defendants could title the motion to lift the stay and proceed with
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discovery as unopposed. Id. at 2:1-2.
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LEGAL STANDARD
Motions to enlarge time are governed by FED R. CIV. PROC. 6(b) and Nevada Local Court
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Rule 26-31 and 26-6:
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(b) Extending Time.
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(1) In General. When an act may or must be done within a specified time, the
court may, for good cause, extend the time:
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(A) with or without motion or notice if the court acts, or if a request is made,
before the original time or its extension expires; or
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///
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///
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On April 17, 2020, the Federal District Court of Nevada amended the Local Rules.
This motion cites to the most recent version.
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(B) on motion made after the time has expired if the party failed to act because
of excusable neglect.[2]
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And
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LR 26-3. EXTENSION OF SCHEDULED DEADLINES
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A motion or stipulation to extend any date set by the discovery plan,
scheduling order, or other order must, in addition to satisfying the
requirements of LR IA 6-1, be supported by a showing of good cause for the
extension. A motion or stipulation to extend a deadline set forth in a discovery
plan must be received by the court no later than 21 days before the expiration
of the subject deadline. A request made within 21 days of the subject deadline
must be supported by a showing of good cause. A request made after the
expiration of the subject deadline will not be granted unless the movant also
demonstrates that the failure to act was the result of excusable neglect. A
motion or stipulation to extend a discovery deadline or to reopen discovery
must include:
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(a) A statement specifying the discovery completed;
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(b) A specific description of the discovery that remains to be completed;
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(c) The reasons why the deadline was not satisfied or the remaining
discovery was not completed within the time limits set by the
discovery plan; and
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(d) A proposed schedule for completing all remaining discovery. [3]
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LR 26-6. DISCOVERY MOTIONS
(a) Unless the court orders otherwise, all discovery disputes are
referred to the magistrate judge assigned to the case.
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(b) All motions to compel discovery or for a protective order must set
forth in full the text of the discovery originally sought and any
response to it.
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(c) Discovery motions will not be considered unless the movant (1) has
made a good faith effort to meet and confer as defined in LR IA 13(f) before filing the motion, and (2) includes a declaration setting
forth the details and results of the meet-and confer conference
about each disputed discovery request.
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(d) In the event of an emergency discovery dispute, the movant may
apply for relief by written motion or, when time does not permit, by
a telephone call to the magistrate judge assigned to the case. The
court may determine whether a discovery dispute is an emergency.
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FED R. CIV. PROC. 6(b).
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Nevada Local Court Rules 26-4.
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Written requests for judicial assistance to resolve an emergency
discovery dispute must satisfy LR 7-4.[4]
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LEGAL ARGUMENT
A.
Local Rule 26-3 Requirements
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1.
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To date, no discovery has been completed as this matter was stayed pending
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screening on the Fifth Amended Complaint. Inmate civil complaints are exempt from the
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initial disclosure requirements. FRCP 26(a)(1)(B). Although discovery did open in this
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matter, the parties almost immediately stayed discovery due to the filing of the Fifth
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Amended Complaint.
The discovery completed to date
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2.
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The parties would like to complete discovery on the allegations in this matter. This
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Discovery that remains to be completed
includes written discovery and potentially depositions.
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3.
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The current discovery deadlines cannot be met due to the delay caused by the Fifth
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The reason the discovery deadline cannot be completed
Amended Complaint and the stay order.
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4.
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Deadline to Complete Discovery: August 18, 2020
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Deadline for Dispositive Motions: September 17, 2020
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Deadline for Joint Pretrial Order: October 21, 2020. If dispositive motions are
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filed, the joint pretrial order is due thirty (30) days after the entry of the Court’s order on
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the motions.
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B.
Proposed discovery schedule
Good Cause Supports the Extension
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This Court should find good cause supports the extension. The parties were awaiting
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a ruling on the pending motion to amend. Further, the parties had agreed to stay discovery
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until this motion was ruled upon. This would ensure the parties knew the operative claims
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and Defendants before proceeding to discovery.
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Nevada Local Court Rules 26-7.
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CONCLUSION
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This Court should grant the motion to lift the stay and proceed to discovery. Now
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that the pending motion has been ruled on, the parties are prepared to proceed to discovery.
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DATED this 21st day of May, 2020.
Respectfully submitted,
AARON D. FORD
IT IS SO ORDERED
Attorney General
By: /s/ Katlyn M. Brady
DATED: June 05, 2020
Katlyn M. Brady (Bar No. 14173)
Deputy Attorney General
Attorneys for Defendants
__________________________________________________
BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE
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CERTIFICATE OF SERVICE
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I certify that I am an employee of the State of Nevada, Office of the Attorney General,
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and that on May 21, 2020, I electronically filed the foregoing UNOPPOSED MOTION TO
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LIFT STAY AND PROCEED WITH DISCOVERY (FIRST REQUEST), via this Court’s
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electronic filing system. Parties that are registered with this Court’s electronic filing system
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will be served electronically. For those parties not registered, service was made by depositing
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a copy for mailing in the United States Mail, first-class postage prepaid, at Las Vegas, Nevada
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to the following:
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Jason Altheide, #1169889
Ely State Prison
PO Box 1989
Ely, NV 89301
Plaintiff, Pro Se
/s/ Natasha D. Petty
An employee of the Office of the
Nevada Attorney General
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