Brand v. Cox et al

Filing 106

ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb (ECF No. 76 ) is accepted and adopted in full; Plaintiff's Objection (ECF No. 83 ) is overruled; Clerk directed to detach and file Plaintiff's Firs t Amended Complaint (ECF No. 45 -1) along with the attached exhibits thereto; Plaintiff will be allowed to proceed on the claims specified herein; Defendant Rexwinkel is dismissed without prejudice; Plaintiff's motion for leave to file a surreply (ECF No. 89 ) is denied; Defendants' motion to strike (ECF No. 91 ) is denied as moot; and Defendants' objection to Magistrate Judge Order (ECF No. 82 ) is overruled. Signed by Judge Miranda M. Du on 12/10/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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THOMAS BRAND,

Case No. 3:17-cv-00043-MMD-WGC
Plaintiff,

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ORDER

v.
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GREG COX, et al.,
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Defendants.
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I.

SUMMARY

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This is a prisoner civil rights case. Before the Court is the Report &

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Recommendation (“R&R”) of Magistrate Judge William G. Cobb (ECF No. 76). Plaintiff

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Thomas Brand filed an objection (ECF No. 83), to which Defendants Dillyn Keith, Shannon

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Moyle, and Ronald Mullins responded (ECF No. 88).

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Additionally before the Court is Defendants’ “Objection to Minutes of Proceedings

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Dated July 11, 2018” (ECF No. 82). Plaintiff responded. (ECF No. 84.) Plaintiff additionally

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filed a “motion to file sur-reply” (ECF No. 89) that Defendants moved to strike (ECF No.

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91). The Court will deny Plaintiff’s motion for leave to file a surreply because it does not

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advance any substantive argument and violates LR 7-2(b).
For the following reasons, the Court overrules both objections. The Court also

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accepts and adopts Magistrate Judge Cobb’s R&R in full.

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II.

BACKGROUND

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Plaintiff is incarcerated in the custody of the Nevada Department of Corrections

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(“NDOC”) at Lovelock Correctional Center (“LCC”). (ECF No. 76 at 1.) Plaintiff is

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proceeding with this action pro se under 42 U.S.C. § 1983. (Id. at 2.) Plaintiff’s claims

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relate to an altercation Plaintiff experienced in culinary at Northern Nevada Correctional

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Center (“NNCC”) on January 10, 2015, as well as the forms Plaintiff received during the

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processing of a disciplinary appeal. (Id. at 7, 9.)

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III.

DEFENDANTS’ OBJECTION TO MINUTES OF PROCEEDING (ECF NO. 82)

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A.

Legal Standard

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Magistrate judges are authorized to resolve pretrial matters subject to district court

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review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A);

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see also Fed. R. Civ. P. 72(a); LR IB 3-1(a) (“A district judge may reconsider any pretrial

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matter referred to a magistrate judge in a civil or criminal case pursuant to LR IB 1-3,

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where it has been shown that the magistrate judge’s ruling is clearly erroneous or contrary

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to law.”). “This subsection . . . also enable[s] the court to delegate some of the more

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administrative functions to a magistrate, such as . . . assistance in the preparation of plans

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to achieve prompt disposition of cases in the court.” Gomez v. United States, 490 U.S.

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858, 869 (1989). “A finding is clearly erroneous when although there is evidence to support

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it, the reviewing body on the entire evidence is left with the definite and firm conviction that

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a mistake has been committed.” United States v. Ressam, 593 F.3d 1095, 1118 (9th Cir.

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2010) (quotation omitted). A magistrate’s pretrial order issued under 28 U.S.C.

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§ 636(b)(1)(A) is not subject to de novo review, and the reviewing court “may not simply

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substitute its judgment for that of the deciding court.” Grimes v. City & County of San

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Francisco, 951 F.2d 236, 241 (9th Cir. 1991).

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B.

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Plaintiff filed the original Complaint on January 4, 2018. (ECF No. 4.) The Complaint

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inconsistently alleged that the events giving rise to Plaintiff’s claims occurred at LCC and

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NNCC, but the attached documents showed that the events occurred at NNCC. (See, e.g.,

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id. at 1, 4, 16, 42.)

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Discussion

Defendants filed a motion to dismiss (ECF No. 25) and a motion for summary
judgment (ECF No. 24) on May 25, 2018.
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Plaintiff then filed a motion for leave to file an amended complaint and attached the

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proposed amended complaint on July 2, 2018. (ECF Nos. 45, 45-1.) Defendants allege

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that the proposed amended complaint set forth new allegations to circumvent Defendants’

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motion to dismiss and motion for summary judgment. (ECF No. 82 at 3.)

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Judge Cobb held a hearing on several outstanding motions on July 11, 2018, and

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asked “defense counsel whether the Defendants would prefer to resubmit the motions

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after the screening of the proposed first amended complaint.” (ECF No. 68 at 1, 3.)

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Defense counsel moved to withdraw the dispositive motions, which Judge Cobb granted.

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(Id. at 3.) Judge Cobb then granted Plaintiff’s motion for leave to file an amended

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complaint. (Id.)

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Defendants first argue that Magistrate Judge Cobb abused his discretion when he

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granted Plaintiff’s motion for leave to amend because that motion constituted a vehicle to

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circumvent dispositive motions. (ECF No. 82 at 6.) Defendants’ argument is puzzling

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because Defendants moved to withdraw their dispositive motions before Judge Cobb

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considered Plaintiff’s motion for leave to amend. (ECF No. 68 at 3.) That aside,

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Defendants overstate the rule. While the Court agrees with Defendants that a “motion for

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leave to amend is not a vehicle to circumvent summary judgment,” Schlacter-Jones v.

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Gen. Tel. of Cal., 936 F.2d 435, 443 (9th Cir. 1991), abrogated on other grounds by

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Cramer v. Consol. Freightways, Inc., 255 F.3d 683 (9th Cir. 2001) (emphasis added), a

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motion for leave to amend may indeed “circumvent” a motion to dismiss. See, e.g., Rolon

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v. Catholic Healthcare W., No. 2:12-CV-00110-LRH, 2012 WL 2138133, at *1 (D. Nev.

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June 12, 2012) (finding a motion to dismiss moot in light of amended complaint). And

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Defendants argue that the amended complaint cured deficiencies that would have

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warranted dismissal—not summary judgment. (See, e.g., ECF No. 82 at 7 (“Each of the

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preceding factual allegations set forth by Plaintiff for the first time in his amended complaint

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are designed to circumvent Defendant’s argument that Plaintiff failed to allege facts from

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which an inference could be drawn that Defendants knew of and disregarded an excessive

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risk to Plaintiff.”) (emphasis omitted).)
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In addition, leave to amend must be freely given “when justice so requires.” Fed. R.

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Civ. P. 15(a)(2); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987). “In

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exercising its discretion ‘a court must be guided by the underlying purpose of Rule 15—to

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facilitate a decision on the merits rather than on the pleadings or technicalities.’” DCD

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Programs, 833 F.2d at 186 (quoting United States v. Webb, 655 F.2d 977, 979 (9th

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Cir.1981)). Rule 15’s policy of favoring amendments to pleadings should be applied with

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“extreme liberality” insofar as the motion to amend is not sought in bad faith, does not

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cause undue delay, does not cause the opposing party undue prejudice, and does not

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constitute an exercise in futility. Id. The policy of favoring amendments under Rule 15(a)

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“is applied even more liberally to pro se litigants” than to parties represented by counsel.

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Eldridge v. Block, 832 F.2d 1132, 1135 (9th Cir. 1987). Given the Ninth Circuit’s instruction

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of “extreme liberality,” particularly as to pro se litigants, the Court finds that Judge Cobb’s

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order granting Plaintiff’s motion for leave to amend was not contrary to law.

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Defendants next argue that Judge Cobb clearly erred when he found that

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Defendants’ dispositive motions cited the Court’s screening order as authority that the

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events in the Complaint occurred solely at LCC. (ECF No. 82 at 8.) However, even if Judge

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Cobb erroneously found that the motions cited the screening order, Defendants have not

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explained how such a finding harmed them. Nor have Defendants explained how

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correcting that finding would alter the outcome of Judge Cobb’s orders (1) granting

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Defendants’ own motion to withdraw their dispositive motions or (2) granting Plaintiff’s

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motion for leave to file an amended complaint. Accordingly, the Court declines to

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reconsider Judge Cobb’s order.

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Defendants next argue that Judge Cobb clearly erred when he found that it was the

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policy of the AG’s office that an inmate must pay the cost of copies of documents that had

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been previously produced to Plaintiff. (ECF No. 82 at 9.) Again, Defendants have not

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explained how this finding harmed them or how it would have altered the outcome of Judge

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Cobb’s orders. Accordingly, the Court declines to reconsider Judge Cobb’s order.

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Thus, the Court overrules Defendants’ objections.
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IV.

PLAINTIFF’S OBJECTION TO R&R (ECF NO. 83)

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A.

Legal Standard

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” Id. In light of Plaintiff’s objection to the

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Magistrate Judge’s R&R, this Court finds it appropriate to engage in a de novo review to

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determine whether to adopt Magistrate Judge Cobb’s R&R. Upon reviewing the R&R and

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records in this case, this Court finds good cause to adopt the Magistrate Judge’s R&R in

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full.

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B.

Discussion

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Plaintiff’s first objection seems to be a request to add Defendants. Count I of

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Plaintiff’s amended complaint contains allegations against Defendants Cox, McDaniel,

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Foster, Baca, Walsh, and Ronald Mullins. (ECF No. 45-1 at 7-9.) Judge Cobb

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recommended that Plaintiff should be allowed to proceed with an Eighth Amendment

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failure to protect claim against each of these Defendants. (ECF No. 76 at 8.) In his

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objection, Plaintiff seeks to add as defendants NDOC commissioners, including Adam

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Laxalt, Brian Sandoval, and the acting secretary of state. (ECF No. 83 at 2.) Plaintiff also

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seeks to add director Dzurenda as a defendant and requests a hearing with him present.

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(Id. at 3.) Plaintiff further alleges that Defendant Moyle spoliated evidence by tampering

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with video footage. (Id.)

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To the extent that Plaintiff wishes to add parties to this lawsuit, he again must move

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for leave to file an amended complaint. Plaintiff cannot add parties by objecting to Judge

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Cobb’s R&R. Plaintiff is cautioned that consideration of such a motion and screening of

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an amended complaint will further delay his case for many months. To the extent that

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Plaintiff alleges spoliation, he must affirmatively seek sanctions for such conduct—his

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objection to Judge Cobb’s R&R is not the proper procedural vehicle for raising this

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concern.

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Plaintiff’s second objection is that his equal protection claim should be dismissed

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without prejudice instead of with prejudice. Count II of Plaintiff’s amended complaint

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contains allegations against Defendants Carpenter, Keith, Moyle, and Rexwinkel. (ECF

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No. 45-1 at 11-12.) Judge Cobb recommended that Plaintiff should be allowed to proceed

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with a First Amendment right to seek redress of grievances claim against these

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Defendants and dismissed with prejudice Plaintiff’s due process and equal protection

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claims. (ECF No. 76 at 11.) Plaintiff’s equal protection claim was dismissed with prejudice

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because “[t]his was Plaintiff’s second attempt at stating an equal protection claim, and he

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still has not set forth any viable allegations to support such a claim.” (Id. at 10.)

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Plaintiff seems to concede that he has not stated an equal protection claim but

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objects to the dismissal of his equal protection claim with prejudice because he believes

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that he may uncover evidence during discovery to support his claim. (See ECF No. 83 at

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4-5 (“Other inmates have their appeals processed and receive fair and un-biased parole

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hearing[s], which establishes an equal protection claim on this issue also, which at some

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point should be allowed to advance based on evidence, giving cause that any dismissal

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at this stage of litigation should be without prejudice. Other than that, this Plaintiff has no

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qua[l]ms, but must object to all ‘with prejudice’ recommendations, being that full discovery

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has not been completed, and other critical factors are likely to arise as discovery

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progresses, and fully supports this Plaintiff’s claims.”).) Plaintiff puts the cart before the

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horse—he must state a plausible claim supported by factual allegations before he can

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obtain discovery on that claim. See generally Bell Atl. Corp. v. Twombly, 550 U.S. 544

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(2007).

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Plaintiff’s third objection relates to defense counsel’s efforts to find a substitute party

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for Defendant Rexwinkel, who is now deceased. Defendant Rexwinkel’s death was noted

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in an unexecuted service of process return from the U.S. Marshals Service filed on May

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25, 2018. (ECF No. 26.) Judge Cobb determined that Plaintiff’s claims against Rexwinkel
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were not extinguished by her death and directed defense counsel to undertake an

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investigation and submit a declaration outlining efforts taken to identify an estate and

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potential successor party for Rexwinkel. (ECF No. 76 at 15-16.) Defense counsel sent a

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certified letter to Rexwinkel’s address, addressed to the administrator of her estate,

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requesting the contact information for the administrator to be provided by July 26, 2018.

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(Id. at 16.) Defense counsel also left two voice messages on the telephone number she

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had for Rexwinkel, asking that the administrator for the estate contact her office. (Id.)

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Defense counsel received no responses. (Id.) Additional searches of probate records and

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obituaries in the Reno Gazette Journal and the Nevada Appeal did not turn up a

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successor. (Id. at 16-17.)

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Judge Cobb recommended that defense counsel was not required to take

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additional steps to identify a successor to Defendant Rexwinkel. (Id. at 8.) Plaintiff objects

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to this recommendation, arguing that defense counsel’s efforts to locate Defendant

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Rexwinkel were inadequate. (ECF No. 83 at 8.) Plaintiff has not identified legal authority

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for his assertion that defense counsel must do more than has already been done, such as

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conducting a credit check, searching for utility bills, or investigating IRS filings, DMV

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registrations, or bank accounts. (See id.) The Court finds that sufficient efforts were

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undertaken. See In re MGM Mirage Sec. Litig., 282 F.R.D. 600, 603 (D. Nev. 2012)

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(requiring a “reasonable” inquiry).
Accordingly, the Court overrules Plaintiff’s objections.

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V.

DEFENDANT JULIE REXWINKEL

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Plaintiff had until October 23, 2018 (90 days from the filing of the suggestion of

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Rexwinkel’s death), to file a motion for substitution identifying Defendant Rexwinkel’s

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executor or administrator as a party or Defendant Rexwinkel would be dismissed under

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Fed. R. Civ. P. 25(a)(1). (ECF No. 100 at 11; ECF No. 76 at 19.) Plaintiff filed a notice on

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August 21, 2018, that the Court construed as a motion for substitution, but that motion

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was denied. (ECF No. 90 (notice); ECF No. 100 at 11 (order denying motion).) To date,

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Plaintiff has not filed an additional motion for substitution. Accordingly, the Court will
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dismiss Defendant Rexwinkel from this action under Fed. R. Civ. P. 25(a)(1). The

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dismissal will be without prejudice because the “history of Rule 25(a) and Rule 6(b) makes

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it clear that the 90 day time period was not intended to act as a bar to otherwise meritorious

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actions, and extensions of the period may be liberally granted.” Zanowick v. Baxter

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Healthcare Corp., 850 F.3d 1090, 1094 (9th Cir. 2017) (quoting Cont’l Bank, N.A. v. Meyer,

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10 F.3d 1293, 1297 (7th Cir. 1993)).

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VI.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the objections

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before the Court.

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It is therefore ordered that the Report and Recommendation of Magistrate Judge

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William G. Cobb (ECF No. 76) is accepted and adopted in full. Plaintiff’s Objection (ECF

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No. 83) is overruled. The Clerk is directed to detach and file Plaintiff’s First Amended

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Complaint (ECF No. 45-1) along with the attached exhibits thereto. Plaintiff will be allowed

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to proceed with the following claims: (1) his Eighth Amendment failure to protect claims in

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Count I against Defendants Ronald Mullins, Cox, McDaniel, Foster, Baca, and Walsh (in

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their official and individual capacities); (2) his First Amendment claim that Defendants

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Keith, Carpenter, and Moyle violated his right to seek redress of grievances in Count II (in

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their individual capacity only); and (3) his retaliation claim against and Keith in Count II (in

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his individual capacity only).
It is further ordered that Defendant Rexwinkel is dismissed from this action without

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prejudice.
It is further ordered that Plaintiff’s motion for leave to file a surreply (ECF No. 89) is

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denied.
It is further ordered that Defendants’ motion to strike (ECF No. 91) is denied as

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moot.

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It is further ordered that Defendants’ objection to Magistrate Judge Order (ECF No.
82) is overruled.
DATED THIS 10th day of December 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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