Franklin v. Arguello et al

Filing 71

MINUTES OF PROCEEDINGS - Motion Hearing held on 3/29/2017 before Magistrate Judge William G. Cobb. Crtrm Administrator: Katie Lynn Ogden; Pla Counsel: Darin J. Franklin, Pro Se (Telephonically); Def Counsel: Heather Zana (Present)< /I>; Recorder: FTR; Recording start and end times: 10:03:49 a.m. - 10:33:43 a.m.; Courtroom: 2. IT IS ORDERED that Plaintiff's 49 motion for sanctions is GRANTED. The sanctions imposed will consist of the Attorne y General's Office financially reimbursing Mr. Franklin monetary charges related to photocopying. Plaintiff shall have up to and including Friday, 4/7/2017, to file a motion for reimbursement of photocopying expenses. Defendants shall ha ve five (5) days upon receipt of Plaintiff's motion to respond to the motion. IT IS FURTHER ORDERED that Plaintiff's 67 motion to amend the 67 scheduling order is GRANTED. The following deadlines are revised: Discov ery Cut-off: Friday, 7/28/2017; Discovery Motions: Friday, 8/18/2017; Dispositive Motions: Thursday, 8/31/2017; Proposed Joint Pretrial Order: Friday, 9/29/2017. (Copies have been distributed pursuant to the NEF - KO)

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
DARIN J. FRANKLIN,

)
)
Plaintiff,
)
)
vs.
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)
TANIA ARGUELLO, et al.,
)
)
Defendants.
)
___________________________________ )

Case No. 3:15-cv-00196-RCJ-WGC
MINUTES OF PROCEEDINGS

March 29, 2017

PRESENT: THE HONORABLE WILLIAM G. COBB, U.S. MAGISTRATE JUDGE
DEPUTY CLERK:

Katie Lynn Ogden

COUNSEL FOR PLAINTIFF:

REPORTER:

FTR

Darin J. Franklin, Pro Se (Telephonically)

COUNSEL FOR DEFENDANTS:

Heather Zana (Present)

MINUTES OF PROCEEDINGS: Motion Hearing
10:03 a.m. Court convenes.
The court holds today’s conference to address Plaintiff’s “Motion for Sanctions”
(ECF No. 49) and Plaintiff’s “Motion to Amend Scheduling Order” (ECF No. 67).
The court preliminarily addresses DAG Zana with regard to certain motions to
dismiss/motions for summary judgment being submitted more frequently by the deputy attorneys
at the Attorney General’s Office. The court states it is referring to motions to dismiss that
contain evidence outside the content of the complaint itself, which requires the court to discuss
the legal standards of a motion to dismiss as well as the legal standards for a motion for summary
judgment. DAG Zana acknowledges that such filings are becoming more commonly submitted
by the deputy attorneys general. Ms. Zana represented she will address the court’s concerns with
her supervisor, Chief Deputy Attorney General Clark Leslie. The court notes it, too, will address
this approach to motion practice at the next quarterly meeting with the Attorney General’s Office
where non case-specific issues are discussed.
The court next addresses the Plaintiff’s motion for sanctions (ECF No. 49). The court’s
interpretation of Plaintiff’s motion is predicated upon Fed. R. Civ. P. 11. Despite Defendants’
arguments to the contrary, Rule 11 does not include a good faith component, which is the essence
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3:15-cv-00196-RCJ-WGC
March 29, 2017
of Defendants’ response (ECF No. 51). The court states several of Plaintiff’s arguments made in
his motion for sanctions are well founded. For example, the court agrees with Plaintiff that the
Defendants’ argument for dismissal pursuant to 28 U.S.C.A. § 1915(e)(2)(b), the in forma
pauperis statute, is irrelevant because Plaintiff paid the filing fee associated with this case and is
therefore not proceeding in forma pauperis status.
The court further expresses its concern in the Defendants’ failure to address in either their
response to Plaintiff’s motion for sanctions (ECF No. 51) or its partial motion to dismiss reply
memorandum (ECF No. 52) topics such as the IFP question, or the Hudson doctrine or the
arguments made by Plaintiff with regard to his claims of improper discipline being predicated on
constitutional grounds, not prison regulations as Defendants argued (and as Judge Jones’
screening order noted).
Additionally, Defendants failed to address in their response to Plaintiff’s motion for
sanctions (ECF No. 51) the claimed unavailability of antacids in the inmates’ canteen at Ely State
Prison and the apparent contradiction with regard to the dates antacid tablets were or were not
available (Referencing the Stephanie Pacheco Declaration, ECF No. 33-2 and Plaintiff’s
attachment of a commissary receipt, ECF No. 49 at 5).
Finally, Defendants failed to respond to the Plaintiff’s written request to withdraw or
correct the Defendants’ argument regarding Parratt v Taylor. As Plaintiff submitted in his “safe
harbor” letter and in his motion for sanctions, actions by a state employee taken pursuant to an
established or authorized state procedure or regulation are not relegated to state post-deprivation
remedies. Parratt, the court explained, only applies to negligent or unauthorized taking of
property. The taking which is the subject of Plaintiff’s complaint is not subject to a Parratt
defense. Plaintiff explained this distinction in his “safe harbor” letter to which Defendants’
counsel admittedly did not respond; neither did Defendants address this distinction in their
memorandum in reply to Plaintiff’s motion for sanctions.
In view today’s discussions and the arguments of the parties, Plaintiff’s motion for
sanctions (ECF No. 49) is GRANTED. The sanctions imposed will consist of the Attorney
General’s Office financially reimbursing Mr. Franklin monetary charges related to photocopying
of following documents: (1) Plaintiff motion for sanctions (ECF No. 49); (2) Plaintiff’s reply
memorandum to Defendants’ response to the motion for sanctions (ECF No. 58); (3) Plaintiff’s
response to Defendants’ partial motion to dismiss (ECF No. 50); and (4) and any
correspondence between Mr. Franklin and DAG Zana with regard to the motion for sanctions
and/or Defendants’ partial motion to dismiss.
Plaintiff shall have up to and including Friday, 4/7/2017, to file a motion for
reimbursement of photocopying expenses. Defendants shall have five (5) days upon receipt of
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March 29, 2017
Plaintiff’s motion to respond to the motion.
The court next addresses Plaintiff’s motion to amend the scheduling order (ECF No. 67).
Plaintiff submitted a reply (ECF No. 70) to Defendants’ response (ECF No. 69), which informs
the Defendants and court why he was unable to timely file his motion to extend the discovery
deadline. Plaintiff explains that he was transferred from Lovelock Correctional Center and
admitted to Humboldt General Hospital for surgery following the day in which he was “rolledup.” DAG Zana acknowledges Plaintiff’s reply memorandum explaining the events leading up to
his filing of the motion to amend; however, it remains Defendants’ position that the motion was
untimely filed.
The court notes that Plaintiff’s motion to strike Defendants’ untimely reply memorandum
(ECF No. 52) was denied by the court even though Defendants’ memorandum was filed eight
days late (ECF No. 64). In view of Plaintiff’s hospitalization, which satisfies both the good
cause and excusable neglect standards, the court therefore approves the motion. IT IS
ORDERED Plaintiff’s motion to amend the scheduling order (ECF No. 67) is GRANTED. The
deadlines contained in the current scheduling order (ECF No. 45) are revised as follows:
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Discovery Cut-Off: Friday, 7/28/2017;

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Discovery Motions: Friday, 8/18/2017;

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Dispositive Motions: Thursday, 8/31/2017;

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Proposed Joint Pretrial Order: Friday, 9/29/2017. In the event dispositive
motion are filed, the deadline to file the proposed joint pretrial order is
suspended until thirty (30) days after a decision on the dispositive motions
or further court order.

The court next discusses with Plaintiff his oral request for court appointed counsel. After
explaining to Plaintiff the court’s preliminary observation that he has shown the ability to
accurately articulate his claims and arguments, Plaintiff is directed to file a formal written motion
for appointment of counsel for the court’s review and decision. The court suggest Plaintiff
address any exceptional or extraordinary circumstances that would justify the appointment of
counsel, such as the potential limitations to taking inmate depositions, or depositions in general
as an inmate pro se litigant.
The parties should be aware of the following:
1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(A) and Rule IB 3-1 of the Local
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3:15-cv-00196-RCJ-WGC
March 29, 2017
Rules of Practice, specific written objections to this Order within fourteen (14) days of receipt.
These objections should be titled “Objections to Magistrate Judge's Order” and should be
accompanied by points and authorities for consideration by the District Court.
2. That this Order is not an appealable order and that any notice of appeal pursuant to
Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the District Court’s judgment.
There being no additional matters to address at this time, court adjourns at 10:33 a.m.

DEBRA K. KEMPI, CLERK OF COURT
By:

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/s/
Katie Lynn Ogden, Deputy Clerk