Boren v. Inspector General et al

Filing 107

ORDER GRANTING Defendants' 106 Motion to Extend Time to File Dispositive Motions (3rd Request). The parties shall have up to and including 12/22/2011 to file any dispositive motions. (See Order for specifics) (Motions due by 12/22/2011) Signed by Magistrate Judge William G. Cobb on 11/22/2011. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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REO BOREN,
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vs.
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INSPECTOR GENERAL, et. al.
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_____________________________)

3:09-cv-00731-HDM (WGC)
ORDER ON MOTION

Before the court is Defendants Motion for Enlargement of Time to File Dispositive

Motion [Third Request] on November 21, 2011. (Doc. # 106.) The dispositive motion deadline
is currently November 21, 2011, and Defendants request an extension of thirty (30) days.
Defendants indicate that they are considering filing an unenumerated 12(b) motion
to dismiss for failure to exhaust administrative remedies after reviewing the summary of
Plaintiff’s grievances in the Nevada Department of Corrections (NDOC) Nevada Offender
Tracking Information System (NOTIS). (Doc. # 106.) However, in light of recent court orders
raising concerns about the sufficiency of providing only the NOTIS documents to support
such motions, and not the actual grievance documentation, Defendants wish to review the
original grievances prior to filing their motion. (Id.) In light of the volume of Plaintiff’s
grievance file, as well as travel plans for the Thanksgiving holiday, this will not be
accomplished in time to meet the current dispositive motion deadline. (Id.) Other reasons
for requesting the enlargement of time include pending discovery motions, and the inability
to address Plaintiff’s medical issues with NDOC Health Information Director, Karen Walsh,

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until she returns from vacation. (Id.)

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Good cause appearing, Defendants’ request is GRANTED, and the court will extend

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the dispositive motion deadline thirty (30) days from the date of this order. Therefore, the

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parties shall have up to and including December 22, 2011, to file any dispositive motions.

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In conclusion, the court will briefly address the issue concerning the grievance

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documentation alluded to in Defendants’ motion in an attempt to circumvent the filing of

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thousands of pages of documentation, which may be unnecessary. It is apparent from

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Defendants’ motion that counsel is aware of the evidentiary issues raised by the court with

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respect to the filing of an unenumerated 12(b) motion to dismiss. The issues raised by the

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court in this regard include apparent discrepancies between the grievance summaries in the

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NOTIS report and the information contained within the actual grievance filed by the inmate,

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and the failure to authenticate evidence filed in support of these motions.

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While the NOTIS summary of grievances is helpful, and the court does not discourage

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Defendants from filing these reports, the summary should only serve to supplement the

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actual documents that form the basis of the affirmative defense. Therefore, if a defendant is

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referring to a specific grievance or grievances to support an unenumerated 12(b) motion, the

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relevant grievance documentation, and not simply the NOTIS report, should be filed in

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support of the motion. If, on the other hand, the defendants are claiming that none of the

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thousands of pages contained within the inmate’s grievance file make reference to the claims

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the inmate is asserting in his lawsuit, the defendant need not provide the court with

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thousands of pages of documents from the inmate’s grievance file. It is sufficient for the

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defendant to provide a declaration, under penalty of perjury, by a person who has reviewed

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the actual grievance file for the relevant time period (and not simply the NOTIS report),

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certifying that the grievance documentation reviewed makes no reference to the

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constitutional claim at issue. This would obviate the need to file thousands of pages of

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grievance documentation with the court.

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/ / /

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/ / /
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If there is any confusion with respect to this issue in a particular case, counsel is

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encouraged to file a brief motion requesting a telephonic status conference, and the court will

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do its best to accommodate the parties in an expeditious fashion.

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IT IS SO ORDERED.

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DATED: November 22, 2011.

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_____________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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