Peck v. State of Nevada, ex rel et al

Filing 235

ORDER denying 231 Motion to Compel and granting 233 Motion to Extend Time. Signed by Magistrate Judge Cam Ferenbach on 6/14/2023. (Copies have been distributed pursuant to the NEF - CAH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA
***

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FRANK M. PECK,

Case No. 2:18-cv-00237-APG-VCF
Plaintiff,

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vs.

ORDER

STATE OF NEVADA, et al.,

MOTION TO COMPEL (ECF NO. 231);
MOTION FOR AN EXTENSION (ECF NO. 233)

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Defendants.
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Pro se plaintiff Frank M. Peck filed motions to compel discovery and for an extension of time to
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file a reply. ECF Nos. 231 and 233. I deny the motion to compel and grant the motion for an extension
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of time. Id.
On March 21, 2023, I held a hearing on plaintiff’s previous motion to compel, which I granted in

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part. ECF No. 230. At the hearing, I ordered the defendants to produce—if it existed—HDSP culinary

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pull sheet dated in the year of 2018; HDSP culinary videos for the morning of the 13th of every month

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of 2018; HDSP meal reports for 2018; video of HDSP unit 11 for the date of December 7, 2017;

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and logs of when emergency call buttons are pushed and answered. Id.

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Attorney Taylor states that after the hearing she consulted with her client to identify and locate
these documents. ECF No. 232. Attorney Taylor wrote a letter to plaintiff, which she signed as an
officer of the court, stating that, “[a]fter a reasonable inquiry, the Nevada Department of Corrections is
not in possession, custody, or control of these documents and tangible things.” ECF No. 232-1. Plaintiff

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filed a motion to compel these documents. ECF No. 231. Defendants have stated they do not have these
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documents. ECF No. 232. Plaintiff asked for more time to file a reply. ECF No. 233. Plaintiff argues in
his reply that the defendants are “probably hiding facts.” ECF No. 234.

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I cannot compel the production of non-existent documents. Plaintiff argues that defendants are

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probably hiding something. This argument is unsupported. Attorney Taylor, as an officer of the court,

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states that the documents do not exist. Absent a showing by plaintiff that such documents do exist,

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plaintiff's renewed motion to compel is denied.

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ACCORDINGLY,

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I ORDER that plaintiff’s motion to compel discovery (ECF No. 231) is DENIED.

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I FURTHER ORDER that plaintiff’s motion for an extension of time to file a reply (ECF No.

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233) is GRANTED.
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NOTICE
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Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and
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recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk
of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

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may determine that an appeal has been waived due to the failure to file objections within the specified

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time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file

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objections within the specified time and (2) failure to properly address and brief the objectionable issues

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waives the right to appeal the District Court's order and/or appeal factual issues from the order of the

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District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch.

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Dist., 708 F.2d 452, 454 (9th Cir. 1983).
Pursuant to LR IA 3-1, the plaintiff must immediately file written notification with the court of
any change of address. The notification must include proof of service upon each opposing party’s

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attorney, or upon the opposing party if the party is unrepresented by counsel. Failure to comply with this
rule may result in dismissal of the action.

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IT IS SO ORDERED.

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DATED this 14th day of May 2023.

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_________________________

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CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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