Randolph v. The State of Nevada, Ex Rel, Nevada Department of Corrections et al

Filing 108

ORDER granting 105 Motion to Dispense with Local Rule of Special Proceeding 2-1; denying without prejudice 104 Motion for Leave to File Amended Complaint. Plaintiff is granted leave to file an amended complaint within 20 days. Amended Complaint deadline: 9/2/2014. Signed by Magistrate Judge William G. Cobb on 8/13/2014. (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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CHARLES RANDOLPH,

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3:13-cv-00148-RCJ-WGC
Plaintiff,

ORDER

v.
THE STATE OF NEVADA, ex. rel.
NEVADA DEPARTMENT OF
CORRECTIONS, et. al.,

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Defendants.

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Before the court are Plaintiff's Motion for Leave to File Amended Complaint (Doc. #

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104) 1 and proposed First Amended Complaint (Doc. # 104-1) and his Motion to Dispense with

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Local Rule of Special Proceeding 2-1 (Doc. # 105). Defendants have filed non-oppositions to

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both motions. (Docs. # 106, # 107.) The court will address these motions in reverse order.
I. DOC. # 105

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First, Plaintiff requests that the court dispense with Local Rule of Special Proceeding

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(LSR) 2-1, which states that "[a] civil rights complaint filed by a person who is not represented

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by counsel shall be on the form provided by this Court." Plaintiff asks that he be permitted to

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submit his proposed amended complaint without utilizing the court's form section 1983

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complaint. Plaintiff's motion (Doc. # 104) is GRANTED.
II. DOC. # 104

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Second, the court will address Plaintiff's motion for leave to amend and proposed

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amended complaint.

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A. Background

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Plaintiff originally filed his complaint in the Seventh Judicial District Court for the State

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Refers to court's docket number.

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of Nevada and it was subsequently removed to this court. (Doc. # 1.) Plaintiff, an inmate in the

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Nevada Department of Corrections (NDOC) alleged that his constitutional and statutory rights

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were violated when defendants allegedly recorded calls placed to his attorney, James A. Colin.

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He sued the State of Nevada, ex. rel. NDOC, James "Greg" Cox (NDOC director), E.K.

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McDaniel (then warden of ESP), Renee Baker (then associate warden of programs and acting

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warden of ESP), Pam Del Porto (inspector general at ESP), Century Link Sales Solutions, Inc.

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and Embarq Communications, Inc. (alleged to be telephone contractors for NDOC). (Compl.,

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Doc. # 7.)

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Plaintiff included a claim against Century Link Sales Solutions, Inc. and Embarq

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Communications, Inc. for violation of the Federal Wiretap Act. These defendants filed a motion

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to dismiss. (Doc. # 5.) They asserted that first, neither Century Link Sales Solutions, Inc. nor

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Embarq Communications, Inc. provided these services, and the correct entity was Embarq

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Payphone Services, Inc. (Id. at n. 1.) They further argued that Plaintiff's allegations indicated that

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he consented to the recording of his calls. (Id. at 4-7.)

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Plaintiff subsequently filed a motion to substitute Embarq Payphone Services, Inc., in

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place of Century Link Sales Solutions, Inc. and Embarq Communications, Inc., which the court

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granted. (Docs. # 32, 33.) Century Link Sales Solutions, Inc. and Embarq Communications, Inc.

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were dismissed from the action. (Id.)

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On October 29, 2013, District Judge Robert C. Jones entered an order granting the

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motion to dismiss (but denied the NDOC defendants' joinder to the motion). (Doc. # 42.)

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Therefore, Judge Jones ordered that Embarq Payphone Services, Inc. was no longer a party to the

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case. (Id. at 10.)

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A scheduling order was entered (Doc. # 37), and the deadlines were subsequently

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extended by stipulation of the party and then again by order of the court (Docs. # 67, # 94.)

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Notably, the deadline to amend pleadings was extended to August 29, 2014. (Doc. # 94.)

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On July 31, 2014, Plaintiff filed this motion for leave to amend (Doc. # 104) and

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proposed amended complaint (Doc. # 104-1). As indicated above, Defendants do not oppose

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Plaintiff's motion.

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B. Plaintiff's Motion for Leave to Amend and Proposed Amended Complaint

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Plaintiff states that he seeks to amend his complaint to reflect: (1) the voluntary dismissal

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of E.K. McDaniel; (2) to assert a state law claim arising from the same operative facts already

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described in the complaint; (3) to correctly identify Century Link; and (4) to bring the complaint

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factually consistent with the facts uncovered during discovery. (Doc. # 104 at 2.)

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First, Plaintiff indicates that he is abandoning his claims against E.K. McDaniel because

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there were not sufficient facts uncovered during discovery to show his personal participation in

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the alleged violations of his rights. (Id. at 3.)

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Second, Plaintiff seeks to assert the state law counterpart for the Federal Wiretap Act

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claim related to the unlawful interception of private communications under Nevada Revised

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Statute 200.690. (Id.)

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Third, Plaintiff notes that while he named Century Link Sales Solutions, Inc. and Embarq

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Communications, Inc. as the telephone contractor defendants in his original complaint, the

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correct defendant was Embarq Payphone Services, Inc., and Embarq Payphone Services, Inc.

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was substituted in place of these entities. (Id. at 4.) He contends that Embarq Payphone Services,

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Inc. has since changed its name to Century Link Public Communications, Inc., and he wants this

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reflected in the amended complaint. (Id.)

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Plaintiff states that Century Link will remain a "former" defendant and will not be

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required to answer the complaint given the court's order that it was dismissed with prejudice, but

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notes that he intends to appeal that decision when the case is finally adjudicated. (Id. at 2, 4.)

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Plaintiff wants the original claims against this defendant to appear in the amended complaint for

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purposes of his appeal. (Id. at 4.)

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Finally, Plaintiff states that his proposed amended complaint omits reference to exhibits

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and does not include exhibits and identifies the correct court, reflecting the removal of the action

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to federal court. (Id.)

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The court has two concerns with the proposed amended complaint. First, the proposed

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amended complaint contains various references to Century Link as a defendant and still directs

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the Wiretap Act claim against Century Link despite its dismissal. (Doc. # 104-1 at 7 ¶ 22, 8 ¶ 23,

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12 ¶ 38, 14 ¶ 46, 17:15 and ¶ 2.) Second, the proposed amended complaint still contains one

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reference to E.K. McDaniel as a defendant. (Id. at 12 ¶ 38.)

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While Plaintiff states in his motion that Century Link is a "former" defendant and need

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not respond to the complaint and that he is simply including them to preserve his rights on

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appeal, this is not necessary. When the action is finally adjudicated and if Plaintiff seeks to

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appeal the decision dismissing Century Link's predecessor from the case, Plaintiff's rights are

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sufficiently protected because the original complaint and order of dismissal are part of the

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docket. The reference to it as a defendant and assertion of a claim against it in the proposed

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amended complaint is improper. The additional reference to E.K. McDaniel as a defendant is

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also improper. (Doc. # 104-1 at12 ¶ 38.) Therefore, Plaintiff's motion for leave to file an

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amended complaint (Doc. # 104) is DENIED WITHOUT PREJUDICE.

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Plaintiff is hereby GRANTED LEAVE TO FILE AN AMENDED COMPLAINT

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WITHIN TWENTY DAYS OF THE DATE OF THIS ORDER. Plaintiff may refer to

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Century Link to provide background information, including the fact that he contends Century

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Link was NDOC's telephone contractor during the relevant period, but Plaintiff may not

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reference it as a defendant and may not direct any claims against it. The other changes that

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Plaintiff proposes in his motion may proceed.

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IT IS SO ORDERED.

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August 13, 2014

__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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