Kelley v. Gedney et al

Filing 11

ORDER granting Plaintiff's ECF No. 1 IFP application - NDOC to pay Clerk from inmate account (copy of order sent to Finance and NDOC Chief of Inmate Services); directing Clerk to e-serve NV AG with this order and ECF No. 4 Complaint ( NEFs sent 10/11/2016); directing AG to advise Court within 21 days re acceptance of service. Answer due within 60 days for any defendants represented. Plaintiff shall serve defendants copy of all pleadings and include certificate of service. The EC F No. 6 Motion to Order the AG to Accept Service is denied. The ECF No. 10 Motion for a Scheduling Order is denied as moot. See order for further details. Signed by Magistrate Judge William G. Cobb on 10/11/2016. (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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JAMES C. KELLEY,

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Plaintiff,
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v.
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KAREN GEDNEY et al.,
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Defendants.
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___________________________________ )

3:16-cv-00041-MMD-WGC
ORDER

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This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a state

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prisoner. Plaintiff has submitted an application to proceed in forma pauperis. (ECF No. 1).

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Based on the financial information provided, the Court finds that Plaintiff is unable to prepay

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the full filing fee in this matter.

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The Court entered a screening order on July 13, 2016. (ECF No. 3). The screening

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order imposed a 90-day stay and the Court entered a subsequent order in which the parties

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were assigned to mediation by a court-appointed mediator. (ECF No. 3, 7). The Office of the

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Attorney General has filed a status report indicating that settlement has not been reached and

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informing the Court of its intent to proceed with this action. (ECF No. 9).

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In light of this order, the Court denies Plaintiff’s motion to order the Office of the

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Attorney General to accept service. (ECF No. 6). Additionally, the Court denies as moot

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Plaintiff’s motion for a scheduling order. (ECF No. 10).

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For the foregoing reasons, IT IS ORDERED that:

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1.

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Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is GRANTED.

Plaintiff shall not be required to pay an initial installment of the filing fee. In the event that this
action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C. § 1915(b)(2).

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2.

The movant herein is permitted to maintain this action to conclusion without the

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necessity of prepayment of any additional fees or costs or the giving of security therefor. This

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order granting leave to proceed in forma pauperis shall not extend to the issuance and/or

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service of subpoenas at government expense.

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3.

Pursuant to 28 U.S.C. § 1915(b)(2), the Nevada Department of Corrections shall

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pay to the Clerk of the United States District Court, District of Nevada, 20% of the preceding

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month’s deposits to Plaintiff’s account (James C. Kelley, #28737), in the months that the

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account exceeds $10.00, until the full $350.00 filing fee has been paid for this action. The

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Clerk of the Court shall SEND a copy of this order to the Finance Division of the Clerk’s Office.

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The Clerk of the Court shall also SEND a copy of this order to the attention of the Chief of

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Inmate Services for the Nevada Department of Corrections, P.O. Box 7011, Carson City, NV

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89702.

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4.

The Clerk of the Court shall electronically SERVE a copy of this order and a copy

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of Plaintiff’s complaint (ECF No. 4) on the Office of the Attorney General of the State of

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Nevada, attention Kat Howe.

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5.

Subject to the findings of the screening order (ECF No. 3), within twenty-one

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(21) days of the date of entry of this order, the Attorney General’s Office shall file a notice

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advising the Court and Plaintiff of: (a) the names of the defendants for whom it accepts

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service; (b) the names of the defendants for whom it does not accept service, and (c) the

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names of the defendants for whom it is filing the last-known-address information under seal.

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As to any of the named defendants for whom the Attorney General’s Office cannot accept

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service, the Office shall file, under seal, but shall not serve the inmate Plaintiff the last known

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address(es) of those defendant(s) for whom it has such information. If the last known address

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of the defendant(s) is a post office box, the Attorney General's Office shall attempt to obtain

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and provide the last known physical address(es).

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6.

If service cannot be accepted for any of the named defendant(s), Plaintiff shall

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file a motion identifying the unserved defendant(s), requesting issuance of a summons, and

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specifying a full name and address for the defendant(s). For the defendant(s) as to which the
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Attorney General has not provided last-known-address information, Plaintiff shall provide the

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full name and address for the defendant(s).

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7.

If the Attorney General accepts service of process for any named defendant(s),

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such defendant(s) shall file and serve an answer or other response to the complaint within

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sixty (60) days from the date of this order.

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8.

Henceforth, Plaintiff shall serve upon defendant(s) or, if an appearance has been

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entered by counsel, upon their attorney(s), a copy of every pleading, motion or other document

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submitted for consideration by the Court. Plaintiff shall include with the original document

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submitted for filing a certificate stating the date that a true and correct copy of the document

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was mailed or electronically filed to the defendants or counsel for the defendants. If counsel

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has entered a notice of appearance, Plaintiff shall direct service to the individual attorney

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named in the notice of appearance, at the physical or electronic address stated therein. The

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Court may disregard any document received by a district judge or magistrate judge which has

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not been filed with the Clerk, and any document received by a district judge, magistrate judge,

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or the Clerk which fails to include a certificate showing proper service.

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9.

The motion to order the Office of Attorney General to accept service (ECF No. 6)

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is denied.

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10.

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DATED: October 11, 2016.

The motion for a scheduling order (ECF No. 10) is denied as moot.

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_________________________________
UNITED STATES MAGISTRATE JUDGE

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