Fernandez v. Centric et al

Filing 217

ORDERED that the Magistrate Judge's # 116 Report and Recommendation is adopted and accepted; P's Motions to Amend/Correct Complaint are GRANTED in part and DENIED in part, and the Clerk of the Court shall FILE the Amended Compla int as specified herein. ( See pdf order for numerous details and specifics. ) P is given until 10/18/2013 to file a second amended if he believes he can correct the noted deficiencies. Clerk shall SEND to P a blank section 1983 form with instructions along with one copy of the original Complaint and one copy of the Amended Complaint. ( Form and docs mailed to P 9/18/2013. ) Signed by Judge Larry R. Hicks on 9/18/2013. (Copies have been distributed pursuant to the NEF - DRM)

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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
ORDER

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Before this Court is the Report and Recommendation of U.S. Magistrate Judge William G.

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Cobb (#1161) entered on February 15, 2013, recommending granting in part and denying in part

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Plaintiff’s Motions to Amend/Correct Complaint (#72, 86) filed on November 29, 2012, and December

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20, 2012, respectively. Plaintiff filed his Objections to Magistrate’s Report and Recommendation #116

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(#126) on March 8, 2013, and Defendants filed their Opposition to Plaintiff's Objection #126 to the

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Magistrate Judge’s Report and Recommendation #116 (#150) on May 22, 2013. The court allowed

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Plaintiff to file a Reply (#215) to Defendants’ Opposition. This action was referred to the Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 1B 1-4 of the Rules of Practice of the United

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States District Court for the District of Nevada.

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The Court has conducted its de novo review in this case, has fully considered the objections of

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the Plaintiff, the responses of the Defendants, Plaintiff’s reply, the pleadings and memoranda of the

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Refers to court’s docket number.

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parties and other relevant matters of record pursuant to 28 U.S.C. § 636 (b) (1) (B) and Local Rule IB

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3-2. The Court determines that the Magistrate Judge’s Report and Recommendation (#116) entered

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on February 15, 2013, should be adopted and accepted, along with the following edits to said Report

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and Recommendation:

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1. The name of defendant Ray Richard shall be changed to Ray Rickard;

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2. The name of defendant Carla Murahani shall be changed to Carla Marikami;

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3. The name of defendant D. Keith shall be changed to Dillyn Keith.

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IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and Recommendation

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(#116) entered on February 15, 2013, is adopted and accepted, Plaintiff’s Motions to Amend/Correct

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Complaint are GRANTED in part and DENIED in part, and the Clerk of the Court shall FILE the

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Amended Complaint as follows:

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(1) To the extent Plaintiff seeks to substitute in the true names for defendants previously

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identified as does (or other iterations thereof), and to provide full or corrected names for certain

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defendants as identified in his second motion for leave to amend (Doc. # 86) and various erratas (Doc.

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## 91, 104), this request is GRANTED and the following substitutions and/or corrections shall be

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made:

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(a) Ray Rickard shall be substituted for defendant Noe in the Amended Complaint;

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(b) Carla Marikami shall be substituted for defendant Pie in the Amended Complaint;

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(c) M. Johnson shall be substituted for Soe in the Amended Complaint;

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(d) Defendant Shepard’s full name shall be entered as Richard Shepard;

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(e) Correctional Officer DuBlanc shall be substituted for Frenchie;

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(f) Defendant J. Wilson’s full name shall be entered as Jonathan Wilson;

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(g) The spelling of defendant Phapp’s name shall be corrected to Papp;

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(h) Defendant Rhalston’s full name shall be entered as Michael Rhalston;

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(i) Defendant Mooney’s full name shall be entered as Roger Mooney;

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(j) Defendant Cardella’s full name shall be entered as John Cardella;
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(k) Paul Samsel shall be substituted for Doe in the Amended Complaint;

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(l) Correctional Officer Lyons shall be substituted for Coe in the Amended Complaint;

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(m) Correctional Officer Zufelt shall be substituted for Foe in the Amended Complaint;

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(n) Karl Grimmer shall be substituted for Hoe in the Amended Complaint;

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(2) To the extent Plaintiff seeks to substitute Dillyn Keith for John Doe RN II in the original

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Complaint, this request is DENIED WITHOUT PREJUDICE as Plaintiff has not identified John Doe

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RN II either in the original or in the Amended Complaint.

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(3) Any reference to the State of Nevada or NDOC in the Amended Complaint shall be
STRICKEN.

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(4) Count I, directed to defendants Barnett and Boe:

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(a) Plaintiff’s motion for leave to amend to add an Eighth Amendment claim for deliberate

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indifference to a serious risk to his safety is DENIED WITHOUT PREJUDICE.

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(5) Count II, directed to defendants Barnett and Boe:

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(a) Plaintiff’s motion for leave to amend to add a claim for breach of contract is DENIED
WITH PREJUDICE;

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(b) Plaintiff’s motion for leave to amend to add a claim for intentional interference with

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contractual relations is DENIED WITHOUT PREJUDICE;

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(6) Count III, directed to defendants Barnett and Boe:

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(a) Plaintiff’s motion for leave to amend a claim for intentional infliction of emotional
distress is DENIED WITHOUT PREJUDICE.

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(7) Count IV, directed to defendants Cox, Fletcher, Foster, Helling, Leavitt, Nash, Neven, and
Reed:

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(a) Plaintiff’s motion for leave to amend to add a supervisory liability claim against

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defendants Cox, Helling, and Reed based on the conduct described in Count I is DENIED WITHOUT

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PREJUDICE;

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(b) Plaintiff’s motion for leave to amend to add a supervisory liability claim against
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defendants Fletcher, Foster, Leavitt, Nash and Neven for their role in denying Plaintiff’s grievance

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related to the conduct alleged in Count I is DENIED WITHOUT PREJUDICE.

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(8) Count V, directed to defendants Carmazzi, Ritz, and Irvin:

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(a) Plaintiff’s motion for leave to amend to add a First Amendment retaliation claim against
these defendants is DENIED WITHOUT PREJUDICE.
(9) Count VI, directed to defendants Carmazzi, Ritz, and Irvin:

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(a) Plaintiff’s motion for leave to amend to add an Eighth Amendment deliberate

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indifference to a serious risk to his safety claim against these defendants is DENIED WITHOUT

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PREJUDICE.

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(10) Count VII, directed to defendants Carmazzi, Ritz, and Irvin:

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(a) Plaintiff’s motion for leave to amend to add a claim for intentional infliction of

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emotional distress against these defendants is DENIED WITHOUT PREJUDICE.

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(11) Count VIII, directed to defendants Castro, Gibson, and Hussein:

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(a) Plaintiff’s motion for leave to amend to add an Eighth Amendment claim for deliberate
indifference to a serious risk to his safety is DENIED WITHOUT PREJUDICE;

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(b) Plaintiff’s motion for leave to amend to add a First Amendment retaliation claim is
DENIED WITHOUT PREJUDICE;

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(12) Count IX, directed to defendants Cardella, Carmazzi, DuBlanc, Dunner, Goe, Grimmer,

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Hogan, Joe, Koe, Lyons, Mooney, Papp, Rhalston, Ryder, Samsel, Shepard, Shorey, Willhite, Wilson,

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and Zufelt:

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(a) Plaintiff’s motion for leave to amend to add any claims asserted in Count IX against

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Carmazzi, DuBlanc, Dunner, Goe, Grimmer, Hogan, Joe, Koe, Lyons, Mooney, and Zufelt is DENIED

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WITH PREJUDICE;

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(b) Plaintiff’s motion for leave to amend to add a First Amendment retaliation claim is
DENIED WITHOUT PREJUDICE;
(c) Plaintiff’s motion for leave to amend to add an Eighth Amendment claim for deliberate
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indifference to a serious risk to his safety is DENIED WITHOUT PREJUDICE;

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(d) Plaintiff’s motion for leave to amend to add an Eighth Amendment deliberate

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indifference claim regarding his conditions of confinement is DENIED WITHOUT PREJUDICE;

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(e) Plaintiff’s motion for leave to amend to add an Eighth Amendment deliberate

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indifference to a serious medical need claim against defendants Rhalston and Shepard is DENIED

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WITH PREJUDICE;

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(f) Plaintiff’s motion for leave to amend to add a Fourth Amendment privacy claim is
DENIED WITHOUT PREJUDICE;

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(g) Plaintiff’s motion for leave to amend to add a prison employment claim is DENIED
WITH PREJUDICE.

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(13) Count X, directed to defendants Cardella, Carmazzi, DuBlanc, Dunner, Goe, Grimmer,

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Hogan, Joe, Koe, Lyons, Mooney, Papp, Rhalston, Ryder, Samsel, Shepard, Shorey, Willhite, Wilson,

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and Zufelt:

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(a) Plaintiff’s motion for leave to amend to add an Eighth Amendment claim for deliberate

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indifference to a serious risk to his safety is DENIED WITH PREJUDICE as to defendants

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Carmazzi, DuBlanc, Dunner, Goe, Grimmer, Hogan, Joe, Koe, Lyons, Mooney, and Zufelt.

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(b) Plaintiff’s motion for leave to amend to add an Eighth Amendment claim for deliberate

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indifference to a serious risk to his safety is DENIED WITH PREJUDICE as to defendants Cardella,

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Papp, Rhalston, Ryder, Samsel, Shepard, Shorey, Willhite, and Wilson.

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(14) Count XI, directed to defendants Cox, Fletcher, Foster, Helling, Leavitt, Nash, Neven,
Reed, and Suwe:

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(a) Plaintiff’s motion for leave to amend to add a supervisory liability claim related to the

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conduct alleged in Count X against defendants Cox, Helling, Reed and Suwe is DENIED WITHOUT

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PREJUDICE;

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(b) Plaintiff’s motion for leave to amend to add a supervisory liability claim related to the

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denial of a grievance connected to the conduct alleged in Count X against defendants Fletcher, Foster,
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Leavitt, Nash and Neven is DENIED WITHOUT PREJUDICE.

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(15) Count XII, directed to defendants Cardella, Carmazzi, DuBlanc, Dunner, Goe, Grimmer,

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Hogan, Joe, Koe, Lyons, Mooney, Papp, Rhalston, Ryder, Samsel, Shepard, Shorey, Willhite, Wilson,

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and Zufelt:

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(a) Plaintiff’s motion for leave to amend to add claims under Nevada Revised Statutes

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209.371 and 209.381 is DENIED WITH PREJUDICE as to defendants Carmazzi, DuBlanc, Dunner,

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Goe, Grimmer, Hogan, Joe, Koe, Lyons, Mooney, and Zufelt.

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(b) Plaintiff’s motion for leave to amend to add claims under Nevada Revised Statutes

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209.371 and 209.381 is DENIED WITHOUT PREJUDICE as to defendants Cardella, Papp,

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Rhalston, Ryder, Samsel, Shepard, Shorey, Willhite, and Wilson.

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(16) Count XIII, directed to defendants Cardella, Carmazzi, DuBlanc, Dunner, Goe, Grimmer,

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Hogan, Joe, Koe, Lyons, Mooney, Papp, Rhalston, Ryder, Samsel, Shepard, Shorey, Willhite, Wilson,

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and Zufelt:

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(a) Plaintiff’s motion for leave to amend to add a claim for intentional infliction of

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emotional distress is DENIED WITH PREJUDICE as to defendants Carmazzi, DuBlanc, Dunner,

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Goe, Grimmer, Hogan, Joe, Koe, Lyons, Mooney, and Zufelt;

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(b) Plaintiff’s motion for leave to amend to add a claim for intentional infliction of

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emotional distress is DENIED WITHOUT PREJUDICE as to defendants Cardella, Papp, Rhalston,

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Ryder, Samsel, Shepard, Shorey, Willhite, and Wilson.

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(17) Count XIV, directed to defendants Burchett, Centric, Fritz, Gedney, Hogan, Hubbard, M.

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Johnson, Konrad, Lamb, Moe, Dr. Carla Marikami, Dr. Ray Rickard, Roe, Schober, Scott, Shorey, Toe,

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Topp, Usuell, Voe, Willhite, Xoe, and Zoe:

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(a) Plaintiff’s motion for leave to amend to add claims for violation of his right to

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substantive due process under the Fourteenth Amendment, retaliation under the First Amendment, and

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violation of his right to privacy under the Fourth Amendment shall PROCEED.

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(18) Count XV, directed to defendants Burchett, Centric, Fritz, Gedney, Hogan, Hubbard, M.
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Johnson, Konrad, Lamb, Moe, Dr. Carla Marikami, Dr. Ray Rickard, Roe, Schober, Scott, Shorey, Toe,

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Topp, Usuell, Voe, Willhite, Xoe, and Zoe:

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(a) Plaintiff’s motion for leave to amend to add a claim for violation of his right to
procedural due process under the Fourteenth Amendment shall PROCEED.

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(19) Count XVII, directed to defendants Burchett, Centric, Fritz, Gedney, Hogan, Hubbard, M.

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Johnson, Konrad, Lamb, Moe, Dr. Carla Marikami, Dr. Ray Rickard, Roe, Schober, Scott, Shorey, Toe,

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Topp, Usuell, Voe, Willhite, Xoe, and Zoe:

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(a) Plaintiff’s motion for leave to amend to add a claim that his Eighth Amendment rights

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were violated because these defendants were allegedly deliberately indifferent to a serious risk to his

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safety shall PROCEED.
(20) Count XVIII, directed to defendants Cox, Fletcher, Helling, Morrow, Palmer,
Shreckengost, Suwe, and Walsh:

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(a) Plaintiff’s motion for leave to amend to add a claim for supervisory liability against Cox,

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Helling, Palmer, Shreckengost, Suwe, and Walsh based on the conduct alleged in Counts XIV, XV,

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and XVII, shall PROCEED;

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(b) Plaintiff’s motion for leave to amend to add a claim for supervisory liability against
grievance responders Fletcher and Morrow is DENIED WITH PREJUDICE.

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(21) Count XIX, directed to defendants Burchett, Centric, Cox, Fritz, Gedney, Helling, Hogan,

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Hubbard, M. Johnson, Konrad, Lamb, Moe, Dr. Carla Marikami, Palmer, Dr. Ray Rickard, Roe,

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Schober, Scott, Shorey, Shreckengost, Suwe, Toe, Topp, Usuell, Voe, Walsh, Willhite, Xoe, and Zoe:

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(a) Plaintiff’s motion for leave to amend to add a claim that these defendants violated

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Nevada Revised Statute 209.371 and unidentified NDOC Administrative Regulations and Medical

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Directives is DENIED WITHOUT PREJUDICE.

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(22) Count XX, directed to defendants Burchett, Cox, Fritz, Gedney, Helling, Hogan, Lamb,

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Moe, Palmer, Schober, Scott, Shorey, Shreckengost, Suwe, Topp, Voe, Walsh, Willhite, Woe, Xoe,

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and Zoe:
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(a) Plaintiff’s motion for leave to amend to add a claim for intentional infliction of

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emotional distress based on the conduct alleged in Counts XIV, XV, and XVII is DENIED

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WITHOUT PREJUDICE.

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(23) Plaintiff is given thirty days from the date of entry of this order to file a second amended

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complaint if he believes he can correct the noted deficiencies. Plaintiff only has leave to amend to

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correct the deficiencies set forth herein. The second amended complaint must be a complete document

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in and of itself, and will supersede the Amended Complaint in its entirety. It must include, in identical

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fashion, the claims that the court has allowed to proceed. Any allegations, parties, or requests for relief

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from prior pleadings that are not carried forward in the second amended complaint will no longer be

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before the court.

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Plaintiff should clearly title the second amended complaint as such by placing the words

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“SECOND AMENDED” immediately above “Civil Rights Complaint Pursuant to 42 U.S.C. § 1983"

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on page 1 in the caption, and Plaintiff shall place the case number, 3:12-cv-00401-LRH-WGC, above

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the words “SECOND AMENDED” in the space for “Case No.”

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The Clerk shall SEND to Plaintiff a blank section 1983 civil rights complaint form with

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instructions along with one copy of the original Complaint and one copy of the Amended Complaint.

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IT IS SO ORDERED.

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DATED this 18th day of September, 2013.
_______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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