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

Filing 130

ORDER denying 84 , 88 , 92 , 95 , 107 , 113 , and 119 motions; denying as moot 94 motion; and granting in part 129 motion for enlargement of time. Opposition to 123 cross-motion for summary judgment and reply re 64 motion for summary judgment due 7/6/2015. Signed by Magistrate Judge Valerie P. Cooke on 5/14/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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3:14-cv-00020-MMD-VPC

DANTE PATTISON,
Plaintiff,

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v.

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ORDER

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STATE OF NEVADA, et al.,
Defendants.

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Before the court are several motions: docket numbers 84, 88, 92, 94, 95, 107, 113, 119,

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and 129. Having reviewed the motions and corresponding papers, this order follows.

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I.

Transfer of All Motions to the District Court (#s 84, 94)

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Plaintiff first seeks to transfer all motions to the “exclusive jurisdiction” of the District

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Court because he “does not consent to any further involvement” of this court (#84). He argues

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that 28 U.S.C. § 636 provides to him a right to have all motions resolved by the District Court.

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The motion (#84) is DENIED. United States Magistrate Judges are authorized to hear

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and finally determine any pretrial matter not specifically enumerated as an exception in 28 U.S.C.

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§ 636(b)(1)(A) or the Local Rules of Practice. Plaintiff’s consent is not required for this court to

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resolve his non-dispositive pre-trial motions. To the extent plaintiff disagrees with an order of

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this court, he may file an objection with points and authorities for the District Court’s

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consideration. Plaintiff’s motion (#94) to enlarge the time to reply to defendants’ opposition is

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DENIED as moot, as he replied and briefing on this issue has concluded.

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II.

Motions to Add Defendants (#s 92, 119)

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Next, plaintiff moves to add several defendants based upon new discovery: in docket

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number 92, he seeks to add as defendants “DDO Cox” and “LC Adams,” and in docket number

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119, he seeks to add Nancy Flores. Defendants oppose the latter motion on several bases,

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including that amendment is not warranted by Federal Rules 15 and 16, and the motion is also

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procedurally deficient under Local Rule of Practice II 15-1.

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The motions (#92, 119) are DENIED. First, under the Local Rules of Practice, a party

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seeking to amend must “attach the proposed amended pleading to any motion to amend . . . .” LR

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II 15-1. Plaintiff may not simply add a defendant by naming individuals in a motion; instead, he

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must prepare an entirely new complaint and submit it along with a motion seeking leave to

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amend.

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Second, both motions are untimely. “A scheduling order is not a frivolous piece of paper,

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idly entered, which can be cavalierly disregarded . . . without peril. The district court’s decision

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to honor the terms of its binding scheduling order does not simply exalt procedural technicalities

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over the merits of [the] case. Disregard of the order would undermine the court’s ability to

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control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and

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the cavalier.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (internal

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citation and quotation omitted). Federal Rule 16 allows the court to enter a scheduling order and

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“grants broad discretion in supervising the pretrial phase of litigation . . . .” Zikovic v. S. Cal.

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Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002). “In general, the pretrial scheduling order can

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only be modified ‘upon a showing of good cause.’” Id. (citation omitted).

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Plaintiff filed docket 92 on February 9, 2015, and docket 119 on April 9, 2015. This

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court’s scheduling order (#62) provided an amendment deadline of January 17, 2015. The

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motions are thus untimely.

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III.

Discovery Motions (#s 88, 95)

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a.

Docket 88

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Plaintiff’s first discovery-related motion, captioned “Demand for Discovery,” apparently

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seeks mental health records, “witness,” and “any exhibits.” Defendants oppose on the bases that

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plaintiff may kite for his medical records, and that it is unclear what discovery plaintiff seeks by

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his references to witnesses and exhibits. (#97 at 2.) In reply, plaintiff quotes Federal Rule of

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Civil Procedure 26; although he makes no explicit statement that such disclosures were not

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tendered to him, the court believes that this may be his argument.
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The motion (#88) is DENIED. The court is uncertain what discovery, in particular, that

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plaintiff desires. Plaintiff and defendants are directed to MEET AND CONFER as required by

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the Federal Rules of Civil Procedure.

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outstanding after engaging in good faith efforts with defendants to obtain the information, he shall

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file a “motion to compel” that “set[s] forth in full the text of the discovery originally sought and

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the response thereto, if any.” See Local Rule of Practice II 26-7. The court will entertain such a

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motion even though the period of discovery has closed.

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b.

If, and only if, plaintiff believes discovery remains

Docket 95

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Plaintiff’s second discovery motion seeks to enlarge the time for discovery. He argues

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that defendants failed to respond to his discovery request dated February 3, which the court

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understands as a reference to his motion at docket number 88. Defendants argue that plaintiff has

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not presented a meritorious basis for extending discovery, but they also state they would not

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oppose extension for the sole purpose of allowing further depositions for which plaintiff pays and

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schedules. (#105 at 3.)

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The motion (#95) is DENIED. The period for discovery has closed and shall not be

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extended. Plaintiff had an ample time to depose defendants if he wished. Moreover, plaintiff’s

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motion fails to identify particular discovery deficiencies, his previous efforts to resolve the

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dispute, and actions by defendants that do not conform with their obligations under the Federal

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Rules. Plaintiff is directed to the court’s order on docket number 88 (see above) regarding his

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late opportunity to bring discovery violations to the court’s attention.

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IV.

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Motions for In Forma Pauperis Status (#s 107, 113)
Plaintiff seeks in forma pauperis status at dockets 107 and 113. The filings are identical,

except that plaintiff signed the latter.

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The motions (#s 107, 113) are DENIED because they are not accompanied with a

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statement from plaintiff’s inmate trust account. 28 U.S.C. § 1915(a)(2) requires that “[a] prisoner

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seeking to bring a civil action or appeal a judgment in a civil action or proceeding without

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prepayment of fees or security therefor, . . . submit a certified copy of the trust fund account

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statement (or institutional equivalent) for the prisoner for the 6-month period immediately
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preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of

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each prison at which the prisoner is or was confined.” Accordingly, plaintiff’s motions are

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deficient.

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V.

Motion for Enlargement of Time (#129)

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Finally, plaintiff moves (#129) for an enlargement of time by at least sixty days in which

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to oppose defendants’ cross-motion for summary judgment and also file his reply to defendants’

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opposition to his summary judgment motion. He so seeks on the bases that the court granted

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defendants many months of extension to oppose his summary judgment motion, that he has an

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upcoming trial, and that he expects to be moved to Ely State Prison in the near future.

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The motion (#129) is GRANTED in part. Plaintiff shall have until July 6, 2015 to file

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his opposition to their motion, and also a reply to their opposition. The parties are advised that no

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further extensions shall be granted for any reason with respect to summary judgment briefing.

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Defendants may reply to plaintiff’s opposition as provided by applicable rules.

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IT IS SO ORDERED.

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DATED: May 14, 2015.
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UNITED STATES MAGISTRATE JUDGE

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