DuShane v. Northern Nevada Correctional Center et al

Filing 40

ORDERED that defendants' motion for clarification of screening order (ECF No. 27 ) is GRANTED to the extent described herein. That the portion of the Court's screening order directing Plaintiff to complete service through the U.S. Marshal 's Office and granting his application for leave to file IFP (ECF No. 19 at 5:6-7, 5:9-6:14) is vacated. Plaintiff's IFP Application (ECF No. 1 ) is deferred. Defendant Nevada Department of Corrections is dismissed with prejudice, as amendment would be futile. The Court clarifies that Plaintiff's First Amendment access to the courts claim states a claim against Defendants Warden Isidro Baca, Associate Warden Walsh, Associate Warden Schreckengost, Correctional Officer Moses, Correctional Officer Foster, and Law Library Supervisor Pauline Simmons. The Court HEREBY STRIKES lines 6-7 and 9-24 on page 5 and lines 1-14 on page 6 of its screening order (ECF No. 19 ). The Court extends the stay currently in effe ct until June 10, 2016, to allow Plaintiff and Defendants an opportunity to settle. On or before June 10, 2016, the AG shall file the report form attached to this order regarding the results of the stay. If case does not settle, P will be required to pay the full $350 filing fee. Signed by Judge Robert C. Jones on 6/7/2016. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

JASEN LYNN DUSHANE,
Plaintiff,

8
v.

9
10

NORTHERN NEVADA CORRECTIONAL
CENTER, et al.,

11
Defendants.
12

)
)
)
)
)
)
)
)
)
)
)

3:14-cv-00586-RCJ-VPC
ORDER

___________________________________
13
I.

DISCUSSION

14
Defendants have submitted a motion for clarification. (ECF No. 27). On January 19,
15
2016, the Court issued its screening order permitting Plaintiff’s First Amendment access to the
16
courts claim to proceed and staying this case for ninety days to allow Plaintiff and Defendants
17
an opportunity to settle their dispute. (ECF No. 19). On February 12, 2016, the Court issued
18
a subsequent order denying a motion for preliminary injunction and a motion for
19
reconsideration filed by the Plaintiff. (ECF No. 22). In that order, the Court stated “the stay
20
issued in the Court’s previous order (ECF No. 19) remains in effect. The parties are directed
21
to refer to that order for all deadlines and pertinent information concerning the further
22
progression of this case.” (ECF No. 22 at 3:8-10).
23
Defendants subsequently filed the instant motion, asking the Court for clarification
24
concerning the Plaintiff’s application to proceed in forma pauperis. (See ECF No. 27). In the
25
screening order, the Court: (1) granted the Plaintiff’s application to proceed in forma pauperis,
26
(2) ordered Plaintiff to complete service of the complaint through the U.S. Marshal’s Office;
27
(3) stayed the case for ninety (90) days to allow Plaintiff and Defendants an opportunity to
28
settle their dispute through a court-appointed mediator. (ECF No. 19 at 5:6-7, 5:9-6:14).

1

The Court hereby grants the motion for clarification. The Court now vacates the portion

2

of the screening order which granted Plaintiff’s application to proceed in forma pauperis and

3

the portion that directed Plaintiff to complete service through the U.S. Marshal’s office. The

4

Court is not denying Plaintiff’s application to proceed in forma pauperis, but rather is deferring

5

it to allow the parties to attempt to settle their disputes before the $350.00 filing fee is paid,

6

an answer is filed, or the discovery process begins. The Court will order e-service on the

7

defendants when it is time to do so.

8

II.

9
10

CONCLUSION
For the foregoing reasons, IT IS ORDERED that defendants’ motion for clarification of

screening order (ECF No. 27) is GRANTED to the extent described above.

11

IT IS FURTHER ORDERED that the portion of the Court’s screening order directing

12

Plaintiff to complete service through the U.S. Marshal’s Office and granting his application for

13

leave to file in forma pauperis (ECF No. 19 at 5:6-7, 5:9-6:14) is vacated.

14
15
16
17

IT IS FURTHER ORDERED that Plaintiff’s application for leave to file in forma pauperis
(ECF No. 1) is deferred.
IT IS FURTHER ORDERED that Defendant the Nevada Department of Corrections is
dismissed with prejudice, as amendment would be futile.1

18

IT IS FURTHER ORDERED that the Court clarifies that Plaintiff’s First Amendment

19

access to the courts claim states a claim against Defendants Warden Isidro Baca, Associate

20

Warden Walsh, Associate Warden Schreckengost, Correctional Officer Moses, Correctional

21

Officer Foster, and Law Library Supervisor Pauline Simmons.

22

IT IS FURTHER ORDERED that, consistent with the findings of this order, the Court

23
24
25
26
27
28

1

The NDOC is an arm of the State of Nevada and is not a “person” for purposes of 42

U.S.C. § 1983. See Doe v. Lawrence Livermore Nat. Lab., 131 F.3d 836, 839 (9th Cir. 1997);
Black v. Nevada Dep’t of Corr., 2:09-cv-2343-PMP-LRL, 2010 WL 2545760, *2 (D. Nev. June
21, 2010). As such, the Court dismisses with prejudice all claims against the NDOC, as
amendment would be futile.
2

1

HEREBY STRIKES lines 6-7 and 9-24 on page 5 and lines 1-14 on page 6 of its screening

2

order (ECF No. 19).

3

IT IS FURTHER ORDERED that the Court extends the stay currently in effect until June

4

10, 2016, to allow Plaintiff and Defendants an opportunity to settle their disputes before the

5

$350.00 filing fee is paid, an answer is filed, or the discovery process begins. The Court has

6

referred this case to the Court’s Inmate Early Mediation Program and an inmate early

7

mediation conference is currently scheduled for May 31, 2016 at 1:30 PM in Reno Courtroom

8

1 before mediator Don Christensen. The mediation shall take place as scheduled. On or

9

before June 10, 2016, the Office of the Attorney General shall file the report form attached to

10

this order regarding the results of the stay, even if a stipulation for dismissal is entered prior

11

to the end of the stay. If the parties proceed with this action, the Court will then issue an order

12

setting a date for Defendants to file an answer or other response. Following the filing of an

13

answer, the Court will issue a scheduling order setting discovery and dispositive motion

14

deadlines.

15

IT IS FURTHER ORDERED that “settlement” may or may not include a payment of

16

money damages. It also may or may not include an agreement to resolve Plaintiff’s issues

17

differently. A compromise agreement is one in which neither party is completely satisfied with

18

the result, but both have given something up and both have obtained something in return.

19

IT IS FURTHER ORDERED that if the case does not settle, Plaintiff will be required to

20

pay the full $350.00 filing fee. This fee cannot be waived. If Plaintiff is allowed to proceed in

21

forma pauperis, the fee will be paid in installments from his prison trust account. 28 U.S.C.

22

§ 1915(b). If Plaintiff is not allowed to proceed in forma pauperis, the $350.00 will be due

23

immediately.

24
25

DATED: This 7th _____ June,of April, 2016.
DATED: This day of day 2016.

26
27

_________________________________

28

United States District Judge
3

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9

JASEN LYNN DUSHANE,
Plaintiff,

10

)

3:14-cv-00586-RCJ-VPC

)

11
12

)

v.

)

13

NORTHERN NEVADA CORRECTIONAL

)

14

CENTER, et al.,

REPORT OF ATTORNEY GENERAL
RE: RESULTS OF 90-DAY STAY

)

15
16

Defendants.

)

___________________________________

17
18

NOTE: ONLY THE OFFICE OF THE ATTORNEY GENERAL SHALL FILE THIS FORM.

19

THE INMATE PLAINTIFF SHALL NOT FILE THIS FORM.

20
21

On January 25, 2016, the Court issued its screening order stating that it had

22

conducted its screening pursuant to 28 U.S.C. § 1915A, and that Plaintiff’s First

23

Amendment access to the courts claim would proceed. The Court ordered the Office of the

24

Attorney General of the State of Nevada to file a report ninety (90) days after the date of

25

the entry of the Court’s screening order to indicate the status of the case at the end of the

26

90-day stay. In a subsequent order, the Court ordered the office of the Attorney General of

27

the State of Nevada to file its report on or before June 10, 2016. By filing this form, the

28

Office of the Attorney General hereby complies.
4

1
2
3
4

REPORT FORM
[Identify which of the following two situations (identified in bold type) describes the case,
and follow the instructions corresponding to the proper statement.]
Situation One: Mediated Case: The case was assigned to mediation by a courtappointed mediator during the 90-day stay. [If this statement is accurate, check ONE of
the six statements below and fill in any additional information as required, then proceed to
the signature block.]

5
6
7
8

____ A mediation session with a court-appointed mediator was held on
_______________ [enter date], and as of this date, the parties have reached
a settlement (even if paperwork to memorialize the settlement remains to be
completed). (If this box is checked, the parties are on notice that they must
SEPARATELY file either a contemporaneous stipulation of dismissal or a
motion requesting that the Court continue the stay in the case until a specified
date upon which they will file a stipulation of dismissal.)

9
10
11
12
13
14

____ A mediation session with a court-appointed mediator was held on
________________ [enter date], and as of this date, the parties have not
reached a settlement. The Office of the Attorney General therefore informs
the Court of its intent to proceed with this action.
____ No mediation session with a court-appointed mediator was held during the
90-day stay, but the parties have nevertheless settled the case. (If this box is
checked, the parties are on notice that they must SEPARATELY file a
contemporaneous stipulation of dismissal or a motion requesting that the
Court continue the stay in this case until a specified date upon which they will
file a stipulation of dismissal.)

15
16

____ No mediation session with a court-appointed mediator was held during the
90-day stay, but one is currently scheduled for ________________ [enter
date].

17
18

____ No mediation session with a court-appointed mediator was held during the
90-day stay, and as of this date, no date certain has been scheduled for such
a session.

19
20
21
22
23
24

____ None of the above five statements describes the status of this case.
Contemporaneously with the filing of this report, the Office of the Attorney
General of the State of Nevada is filing a separate document detailing the
status of this case.
*****
Situation Two: Informal Settlement Discussions Case: The case was NOT assigned
to mediation with a court-appointed mediator during the 90-day stay; rather, the
parties were encouraged to engage in informal settlement negotiations. [If this
statement is accurate, check ONE of the four statements below and fill in any additional
information as required, then proceed to the signature block.]

25
26
27
28

____ The parties engaged in settlement discussions and as of this date, the
parties have reached a settlement (even if the paperwork to memorialize the
settlement remains to be completed). (If this box is checked, the parties are
on notice that they must SEPARATELY file either a contemporaneous
stipulation of dismissal or a motion requesting that the Court continue the stay
in this case until a specified date upon which they will file a stipulation of
5

dismissal.)

1
2
3
4
5
6
7

____ The parties engaged in settlement discussions and as of this date, the
parties have not reached a settlement. The Office of the Attorney General
therefore informs the Court of its intent to proceed with this action.
____ The parties have not engaged in settlement discussions and as of this date,
the parties have not reached a settlement. The Office of the Attorney
General therefore informs the Court of its intent to proceed with this action.
____ None of the above three statements fully describes the status of this case.
Contemporaneously with the filing of this report, the Office of the Attorney
General of the State of Nevada is filing a separate document detailing the
status of this case.

8
Submitted this _______ day of __________________, ______ by:
9
10

Attorney Name: ________________________
Print

11

Address:

_____________________________
Signature

________________________________

Phone:
________________________

________________________________

Email:
________________________

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6