Fernandez v. Centric et al

Filing 213

ORDER overruling Plaintiff's 48 , 81 , and 89 Objections. Signed by Judge Larry R. Hicks on 09/13/2013. (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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*****

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KEVIN FERNANDEZ,

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Plaintiff,

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v.

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DR. CENTRIC, et al.,

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Defendants.

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) 3:12-cv-00401-LRH-WGC
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) ORDER
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Before the court are plaintiff Kevin Fernandez’s Objections (#48,1 81, 89) to the

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Magistrate Judge’s Orders (##32, 73, 74, 77, 83) pursuant to Local Rule IB 3-1. The Magistrate

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Judge’s Orders operate as final determinations of pretrial matters under 28 U.S.C. § 636(b)(1)(A)

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and Local Rule IB 1-3. Accordingly, a district judge may reconsider the Magistrate Judge’s

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Orders only if they are “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R.

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Civ. P. 72(a); LR IB 3-1(a).

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Having considered the parties’ briefing, the court concludes that the Magistrate Judge’s

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Orders are neither clearly erroneous nor contrary to law. Fernandez’s first objection concerns the

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Magistrate Judge’s ruling that he may not proceed in this litigation under a pseudonym nor

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require all references to his mental health be made under seal. Fernandez’s claims collectively

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allege that he was erroneously treated as a mentally ill inmate in violation of his constitutional

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rights. Thus, compliance with Ferndandez’s request would require nearly the entire proceeding to

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be sealed.

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Refers to the court’s docket entry number.

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Pseudononymous litigation is disfavored; it is contrary to the Federal Rules and “the

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public’s common law right of access to judicial proceedings.” Does I thru XXIII v. Advanced

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Textile Corp., 214 F.3d 1058, 1067 (9th Cir. 2000); see also Fed. R. Civ. P. 10(a). The court

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balances the need for anonymity against the presumption of public access in three situations: (1)

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where a party faces retaliation, (2) where the suit concerns “matter of a sensitive and highly

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personal nature,” and (3) where a party is compelled to admit something that would risk criminal

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prosecution. Does I thru XXIII, 214 F.3d at 1068.

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Here, the Magistrate Judge properly determined that Fernandez’s privacy interests did not
overcome the presumption of public access because Fernandez’s medical records would be filed

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under seal. Fernandez now objects that he faces retaliation for filing this suit, but allowing

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Fernandez to proceed anonymously would be no remedy: Fernandez filed his complaint under his

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own name, and he avers that his alleged persecutors (Defendants and other inmates) already

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know this fact. Fernandez also objects that Defendants did not carry their burden in showing

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prejudice to the public from Fernandez’s anonymous participation, that the Magistrate Judge

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employed the wrong legal balancing test, and that the Magistrate Judge did not address

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Fernandez’s request to seal the proceedings. Each objection fails. Fernandez faced a presumption

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against pseudononymous litigation, and therefore the burden of overcoming that presumption fell

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on him. Fernandez cites Does I thru XXIII for a legal balancing test that appears no where in its

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pages. And the Magistrate Judge found that the sealing of Fernandez’s medical records

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adequately answered Fernandez’s request for “an order sealing any portion of the record which

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contains information referring to [his] mental health.” (Order #32, p. 1.) Therefore, the

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Magistrate Judge’s Order was not clearly erroneous or contrary to law.

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Next, Fernandez objects to two Minute Orders and a Scheduling Order, chiefly on the

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basis that the Magistrate Judge denied him an opportunity to supplement his Motion for

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Injunctive Relief (#17). Yet Fernandez’s Motion for Injunctive Relief is not properly before the

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court; it is, as the Magistrate Judge noted, a collateral complaint unrelated to Fernandez’s claims

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in this case. (Order #98, p. 5.) Therefore, the Magistrate Judge properly denied all supplemental

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requests related to Fernandez’s Motion, including his request to submit additional evidence.
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Fernandez also objects that Defendants did not allow him enough time to conduct a review of his

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own medical records. But this is not an objection to the Magistrate Judge’s Order; it is a

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complaint sounding in Defendants’ discovery conduct. Fernandez’s objection is therefore

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directed at the wrong target. Finally, Fernandez objects to the Scheduling Order on the basis that

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the court refused to enlarge the time for him to amend his complaint with the real names of

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“Doe” defendants. However, the Magistrate Judge did enlarge this time—just not by the six

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months that Fernandez requested. (Order #77, p. 2.) Fernandez has identified no reason to believe

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the Magistrate Judge’s timeframe was so prejudicial as to be contrary to law. Since Fernandez’s

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remaining arguments are without merit, Fernandez’s objection is overruled.

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Fernandez’s third objection addresses the Magistrate Judge’s order that Fernandez is not

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entitled to service of subpoenas at government expense. Fernandez’s argument rests on 28 U.S.C.

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§ 1915(d), which provides that plaintiffs proceeding in forma pauperis are entitled to

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government-provided service of process. However, with respect to subpoenas, “service” includes

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tendering certain witness fees (when the witness is compelled to attend). Fed. R. Civ. P. 45(b). It

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is these fees that the government will not bear. Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989)

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(“Although the plain language of section 1915 provides for service of process for an indigent's

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witnesses, it does not waive payment of fees or expenses for those witnesses.”). Therefore,

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Fernandez’s objection on this basis is unfounded.2

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IT IS THEREFORE ORDERED that Fernandez’s Objections ##48, 81, and 89 are
OVERRULED.

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IT IS SO ORDERED.

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DATED this 13th day of September, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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For a similar reason, the court will not reconsider the relevant portion of its Order (#3).
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