Neff v. McDaniel et al

Filing 42

ORDER adopting 41 Report and Recommendations as follows: 1. The clerk shall file the P's first amended complaint. 2. The complaint shall proceed on P's Count I retaliation against Ds Neagle, Bryant, and McDaniel, Count II due pro cess claim against Ds Brooks, Endel, and McDaniel, Count II conditions of confinement claim against D Bryant, and Count II due process claim against D McDaniel. 3. The P's Count I claim against D McDaniel alleging violation of his right to a ccess the courts and his Count II claim against D Bryant alleging violation of his right to due process are hereby dismissed without prejudice. 4. The clerk shall electronically serve a copy of this order, along with a copy of plaintiffs first am ended complaint, on the AG. ( E-service performed 9/27/2010 ) The AG shall file an answer or other response to the first amended complaint by 10/27/2010. 5. If AG does not accept service of process for any named Ds, then Pf must file a motion i dentifying the unserved Ds, requesting issuance of summons for the unserved Ds, and specifying the full name(s) and address(es) of the unserved Ds. 6. P's motion for summons on additional Ds (# 38 ) is denied without prejudice as moot with leave to renew the motion should AG not accept service. Signed by Judge Howard D. McKibben on 9/27/2010. ( Attachments: # 1 First Amended Complaint )(Copies have been distributed pursuant to the NEF - DRM) Modified on 9/27/2010 to add hyperlink (DRM).

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Neff v. McDaniel et al Doc. 42 1 2 3 4 5 6 7 8 9 10 11 12 13 The court has considered the report and recommendation of the 14 United States Magistrate Judge (#41) filed on August 27, 2010, in 15 which the magistrate judge recommends that this court enter a 16 screening order dismissing without prejudice some of the claims 17 asserted by plaintiff in his first amended complaint (#37). 18 objections to the report and recommendation have been filed and the 19 time for doing so has expired. 20 pleadings and memoranda of the parties and other relevant matters 21 of record and has made a review and determination in accordance 22 with the requirements of 28 U.S.C. 636 and applicable case law, 23 and good cause appearing, the court hereby 24 ADOPTS AND ACCEPTS in part and rejects in part the report and 25 recommendation of the United States Magistrate Judge (#41). 26 1 Dockets.Justia.com UNITED STATES DISTRICT COURT DISTRICT OF NEVADA JOHN NEFF, ) ) Plaintiff, ) ) vs. ) ) ELDON K. MCDANIEL, et al., ) ) Defendants. ) _________________________________ ) 3:09-cv-00271-HDM-VPC ORDER No The court has considered the The court adopts the magistrate judge's recommendation that plaintiff's Count I retaliation claim against defendants Neagle, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Bryant, and McDaniel, Count II due process claim against defendants Brooks, Endel, and McDaniel, and Count II conditions of confinement claim against defendant Bryant be allowed to proceed. The court further adopts the magistrate judge's recommendation that plaintiff's Count I right to access the courts claim against defendant McDaniel and his Count II due process claim against defendant Bryant be dismissed without prejudice. As to plaintiff's Count II due process claim against defendant McDaniel, the court concludes this claim should not be dismissed at this stage of the proceeding. Accordingly, it is ordered that: 1. The clerk shall file the plaintiff's first amended complaint. 2. The complaint shall proceed on plaintiff's Count I retaliation against defendants Neagle, Bryant, and McDaniel, Count II due process claim against defendants Brooks, Endel, and McDaniel, Count II conditions of confinement claim against defendant Bryant, and Count II due process claim against defendant McDaniel. 3. The plaintiff's Count I claim against defendant McDaniel alleging violation of his right to access the courts and his Count II claim against defendant Bryant alleging violation of his right to due process are hereby dismissed without prejudice. 4. The clerk shall electronically serve a copy of this order, along with a copy of plaintiff's first amended complaint, on the Office of the Attorney General of the State of Nevada, attention 2 Pamela Sharp. The Attorney General shall file an answer or other response to the first amended complaint within thirty (30) days of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3 ____________________________ UNITED STATES DISTRICT JUDGE the date of entry of this order. 5. If the Attorney General does not accept service of process for any named defendant(s), then plaintiff must file a motion identifying the unserved defendant(s), requesting issuance of summons for the unserved defendant(s), and specifying the full name(s) and address(es) of the unserved defendant(s). 6. Plaintiff's motion for summons on additional defendants (#38) is denied without prejudice as moot with leave to renew the motion should the Office of the Attorney General of the State of Nevada not accept service. IT IS SO ORDERED. DATED: This 27th day of September, 2010.

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