Merry v. Sandoval et al

Filing 15

ORDER - The motion for service of the first amended complaint (ECF No. 11 ) is DENIED WITHOUT PREJUDICE. Signed by Magistrate Judge William G. Cobb on 8/30/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DANIEL V. MERRY,
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Plaintiff,
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vs.
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BRIAN SANDOVAL, et al.,
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Defendants.
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______________________________________)

3:16-cv-164-MMD-WGC
ORDER

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Plaintiff filed his application for leave to proceed in forma pauperis and complaint on March 21,
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2016. (ECF Nos. 1, 1-1.) The court screened the pro se complaint pursuant to 28 U.S.C. § 1915A on
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September 28, 2016. (ECF No. 3.) The original complaint alleged that on July 22, 2012, Plaintiff fell
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from a top bunk at NNCC and injured his neck, which he claims caused him to suffer severe cervical
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compression and he was referred to a neurosurgical group. (ECF No. 1-1 at 3.) He underwent four
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cervical spine surgeries, which he contends were made necessary as a result of a delay from the time of
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his injury and time of surgical treatment. (Id. at 6.) He asserted violations of his Eighth and Fourteenth
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Amendment rights against various defendants. The court dismissed the claims with leave to amend, with
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the exception of his State law professional negligence claim, which was dismissed with prejudice. (Id.
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at 7.)
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Plaintiff filed an amended complaint on November 22, 2016 (ECF No. 7), along with a motion
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for temporary restraining order and preliminary injunction (ECF Nos. 8, 9), a motion for appointment
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of counsel (ECF No. 10), and a motion for service of process of the amended complaint (ECF No. 11).
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On August 30, 2017, attorney Dan M. Winder filed a notice of appearance on behalf of Plaintiff.
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(ECF No. 12.) The court entered a minute order denying the motion for appoint of counsel as moot in

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light of the appearance by Mr. Winder. (ECF No. 14.)

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The court will issue a separate order setting this matter for a status conference. At that time, the

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court will address Plaintiff’s first amended complaint. Specifically, the court will inquire of counsel

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whether Plaintiff intends to proceed with the first amended complaint or file an amended pleading. The

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court will also address with Plaintiff’s counsel the pending motions for temporary restraining order and

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preliminary injunction, and whether Plaintiff intends to proceed with those motions.

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The general rule under 28 U.S.C. § 1915A is that “[t]he court shall review … a complaint in a

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civil action in which a prisoner seeks redress from the governmental entity or officer or employee of a

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governmental entity” and “shall identify cognizable claims or dismiss the complaint, or any portion of

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the complaint” if it is “frivolous, malicious, or fails to state a claim upon which relief can be granted;

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or … seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(a),

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(b).

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Section 1915A does not expressly differentiate between represented and unrepresented prisoner

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cases with regard to screening, and there is no authority addressing this issue. This court typically does

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not screen section 1983 prisoner cases where the plaintiff is represented by counsel. For one thing, the

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pleading obligations of an attorney under Federal Rule of Civil Procedure 11 tend to substantially reduce

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the incidence of claims that are frivolous or otherwise patently noncognizable on their face. Pro se

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litigants are not attorneys and should not be expected to know how to draft pleadings as if they were.

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Judicial screening of prisoner complaints serves to prevent prisoner complaints which are truly difficult,

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if not impossible to understand, from being served upon defendants. Screening of represented cases to

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decipher the allegations and claims is usually unnecessary. See, e.g., Nordstrom v. Ryan, 762 F.3d 903,

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907 n. 1 (9th Cir. 2014) (noting that the “purpose of § 1915A is to ensure that the targets of frivolous

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or malicious suits need not bear the expense of responding”); O’Neal v. Price, 531 F.3d 1146, 1153 (9th

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Cir. 2008) (explaining that the PLRA’s screening provision was intended to “conserve judicial resources

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by authorizing district courts to dismiss nonmeritorious prisoner complaints at an early stage”). As such,

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the court will not further screen complaints in this counseled prisoner case.

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Before the status conference, Plaintiff’s counsel may file an amended pleading, as he sees fit,

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withdraw any of the pending motions, or file a notice advising the court whether or how he intends to

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proceed with the first amended complaint and any pending motions.

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The application to proceed in forma pauperis will be deferred until after the parties complete the
early mediation conference process.

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The motion for service of the first amended complaint (ECF No. 11) is DENIED WITHOUT

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PREJUDICE. A request for service of the operative pleading may be entertained after the early

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mediation conference is completed, if necessary.

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IT IS SO ORDERED.
DATED: August 30, 2017.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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