Alexander v. State Of Nevada et al

Filing 99

ORDER directing the AG to advise within 21 days re acceptance of service for remaining defendants (see order for details); directing defendants on whose behalf service has already been accepted to file an answer to the newly operative 10 first ame nded complaint within 21 days; directing Plaintiff to file a motion identifying unserved defendants if the AG does not accept service; directing Clerk to send this order to Plaintiff at ESP along with copies of 95 , 97 , and 98 (mailed 8/7/2014); directing Plaintiff to file a notice of change of address within 14 days. Signed by Magistrate Judge William G. Cobb on 8/7/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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NARVIEZ ALEXANDER,

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3:10-cv-00429-RCJ-WGC
Plaintiff,

ORDER

v.
DUANE GRAHAM, et. al.,

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Defendants.

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Following the issuance of a decision by the Ninth Circuit remanding a portion of this

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case, the court issued an order on April 18, 2014, allowing certain claims to proceed and giving

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Plaintiff leave to amend to correct deficiencies noted in other claims. (Doc. # 94.) Plaintiff has

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indicated he received this order. (See Doc. # 98-1.)1 Plaintiff was given thirty days from the date

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of that order to file a Second Amended Complaint. (Doc. # 94 at 30.) As of the date of the

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issuance of this Order, Plaintiff has not filed an amended complaint to correct the deficiencies

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noted in the prior order. Plaintiff was cautioned in the court's prior order that if he failed to file

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an amended complaint within the specified time period, the complaint would proceed only on

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those claims permitted in the court's order and on the Eighth Amendment claim in Count VI for

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deliberate indifference related to his dental treatment (that was remanded by the Ninth Circuit).

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(Id.) Therefore, the case will proceed as to those claims identified in the prior order and

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contained within the newly operative First Amended Complaint (Doc. # 10), which are the

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The order (Doc. # 94) was sent to Plaintiff at his address of record at Northern Nevada
Correctional Center (NNCC); however, the court got an electronic notice of the mail being
returned as undeliverable because Plaintiff was no longer housed at NNCC and was now at Ely
State Prison (ESP). (Doc. # 95.) The court directed the Clerk to send the order to Plaintiff at ESP.
In a letter requesting information on the status of his case that was eventually returned to
Plaintiff, he indicated that he had in fact received Doc. # 94. (Doc. # 98-1.) Plaintiff has yet to
file a notice of change of address from NNCC to ESP as he is required to do under LSR 2-2. This
Order directs Plaintiff to file the notice of change of address within fourteen days.

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following:
(1) Count I: Fourteenth Amendment due process claim against defendants Baca, Morrow,

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Garcia, Graham, Nash, Deal, Wuest, Baker, Drain, Neven, Scillia, McDaniel and Cox;

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(2) Count II: Eighth Amendment conditions of confinement claim related to the shower

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conditions he faced in segregation against defendants Skolnik, Cox, Neven, Scillia, McDaniel,

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Baca, Morrow, Nash, Patterson, Brooks, Baker, Deal, Graham, Garcia, Wuest, and Drain (these

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allegations were repeated in Count III);

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(3) Count VI: Eighth Amendment claim for deliberate indifference to a serious medical

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need related to alleged sixty-five day delay in treatment for abscess that resulted from decayed

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tooth against defendant Hanson and a supervisory liability claim related to these allegations

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against defendants Baca, Bannister, Cox, Hartman, Neven and Skolnik;
(4) Count IX: retaliation claim against defendants Dooley, Fowler and Lamprich, and

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retaliation and equal protection claims against defendant Baca; and

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(5) Count X: Eighth Amendment conditions of confinement claim related to the

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deprivation of outdoor exercise against defendants Skolnik, Cox, Neven, Baca, Morrow and

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Wuest.

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The Attorney General has previously accepted service and entered an appearance on

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behalf of defendants Baca, Bannister, Cox, Graham, Hanson, Hartman, Morrow, Neven, and

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Skolnik. (Doc. # 14.)

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IT IS ORDERED that the Attorney General shall advise the court within twenty-one

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days of the date of this Order whether they will accept service of process for the remaining

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defendants: Baker, Brooks, Deal, Dooley, Drain, Fowler, Garcia, McDaniel, Nash, Patterson,

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Scillia, and Wuest. If there is any defendant for whom the Attorney General's Office will not

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accept service, the Attorney General shall file the last known address for such defendants under

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seal. This shall also be done within twenty-one days of the date of this Order.

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IT IS FURTHER ORDERED that the defendants on whose behalf service has already

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been accepted shall file and serve an answer or other response to the newly operative first

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amended complaint within twenty-one days of the date of this Order. Once service is accepted

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on behalf of any additional defendants, such defendants shall file and serve an answer or other

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response to the newly operative first amended complaint within twenty-one days of the date of

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the notice of acceptance of service.

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IT IS FURTHER ORDERED that if the Attorney General does not accept service of

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process for any named defendant, then Plaintiff must file a motion identifying the unserved

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defendant(s) and request issuance of a summons for such defendant(s). Pursuant to Rule 4(m) of

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the Federal Rules of Civil Procedure, service must be accomplished within 120 days of the date

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the operative complaint is filed. For purposes of this action, the court will construe the 120 days

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as running from the date of this Order officially allowing the claims to proceed.

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Plaintiff is reminded of his obligation to serve upon defendants, or if an appearance has

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

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

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

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mailed to the defendants or counsel for defendants. The court may disregard any paper received

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that has not been filed with the Clerk, and any paper which is not accompanied by a certificate

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showing proper service.

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The Clerk is instructed to SEND this Order to Plaintiff at Ely State Prison (ESP), along
95, 97 97 98.
with copies of Docs. # 95, 96, andand 98.
Plaintiff is directed to file within fourteen days of the date of this Order a notice of
change of address indicating his correct address at ESP in conformity with LSR 2-2.

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IT IS SO ORDERED.

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August 7, 2014.

__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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