Kennedy v. Watts et al

Filing 25

ORDER pursuant to the Courts screening order ECF No. 24 , this action shall proceed against Defendants Officer Sumrall, Officer Deeds, and Nurse Sumrall (Court III); Watts, Henriod, Sawyer, Mingo, Lopez, Wall, and Casarez (Count IV); Dzurenda, Filso n, and Gittere (Count VI). IT IS FURTHER ORDERED that the Clerk issue summons for Officer Sumrall, Officer Deeds, Nurse Sumrall, Watts, Henriod, Sawyer, Mingo, Lopez, Wall, and Casarez and send together with copies of the first amen ded complaint ECF No. 21 and this order to U.S. Marshal for service (distributed to U.S. Marshal on 1/3/2019); Clerk to send plaintiff (10) USM-285 forms (mailed to P on 1/3/2019); plaintiff shall have 30 days in which to complete and return the USM-285 form to U.S. Marshal; within 20 days after receiving from USM a copy of the USM-285 form showing whether service has been accomplished, plaintiff must file a notice with the court identifying whether defendant was served or notIT IS FUR THER ORDERED that as to Defendants Filson, Dzurenda, and Gittere, the Clerk is directed to e-serve a copy of this order and First Amended Complaint ECF No. 21 on AG (e-service of order and NEF regeneration of ECF No. 21 on 1/3/2019); d irecting AG to advise Court by 1/24/2019 re acceptance of service; if service cannot be accepted, Plaintiff shall file a motion identifying the unserved defendants(s), requesting issuance of a summons and specifying full name/address of the d efendant(s); answer/response due by 3/4/2019 for any defendants represented; service must be perfected by 4/3/2019; Plaintiff shall serve defendants a copy of all pleadings and include certificate of service. See order for further details. Signed by Magistrate Judge William G. Cobb on 1/3/2019. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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KEVIN LEE KENNEDY,

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Plaintiff,

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Case No. 3:17-cv-00468-MMD-WGC
ORDER

v.
DAN WATTS, et al.,

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Defendants.

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I.

DISCUSSION

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On November 19, 2018, the Court issued a screening order dismissing some claims with

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leave to amend, dismissing other claims without leave to amend, and permitting claims against

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Defendants Officer Sumrall, Officer Deeds, and Nurse Sumrall (Count III – excessive force),

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Defendants Watts, Henriod, Sawyer, Mingo, Lopez, Wall, and Casarez (Count IV – failure to

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protect), and Defendants Dzurenda, Filson, and Gittere (Count VI – procedural due process) to

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proceed. (ECF No. 24 at 18–19.) The Court granted Plaintiff 30 days from the date of that order to

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file a second amended complaint. (Id. at 19.) The Court specifically stated that if Plaintiff chose

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not to file a second amended complaint, the action would proceed only on the claims against

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Defendants Officer Sumrall, Officer Deeds, and Nurse Sumrall (Count III – excessive force),

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Defendants Watts, Henriod, Sawyer, Mingo, Lopez, Wall, and Casarez (Count IV – failure to

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protect), and Defendants Dzurenda, Filson, and Gittere (Count VI – procedural due process). (Id.)

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Plaintiff has not filed a second amended complaint. Therefore, pursuant to the screening order, this

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action shall proceed on the claims against Defendants Officer Sumrall, Officer Deeds, and Nurse

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Sumrall (Count III – excessive force), Defendants Watts, Henriod, Sawyer, Mingo, Lopez, Wall,

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and Casarez (Count IV – failure to protect), and Defendants Dzurenda, Filson, and Gittere (Count

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VI – procedural due process).

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The Court recognizes that Plaintiff states claims against multiple defendants, including the

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following NDOC officials: Dzurenda, Filson, and Gittere. Because most of the named defendants

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are White Pine County employees, the Court will not refer this case to the Inmate Early Mediation

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Program. Instead, this case will proceed on the normal litigation track as guided by the Federal

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Rules of Civil Procedure. The Court previously granted Plaintiff’s application to proceed in forma

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pauperis. (ECF No. 24 at 17.)

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II.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that, pursuant to the Court’s screening order

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(ECF No. 24), this action shall proceed on the claims against Defendants Officer Sumrall, Officer

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Deeds, and Nurse Sumrall (Count III – excessive force), Defendants Watts, Henriod, Sawyer,

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Mingo, Lopez, Wall, and Casarez (Count IV – failure to protect), and Defendants Dzurenda,

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Filson, and Gittere (Count VI – procedural due process).
IT IS FURTHER ORDERED that as to Defendants Officer Sumrall, Officer Deeds,
Nurse Sumrall, Watts, Henriod, Sawyer, Mingo, Lopez, Wall, and Casarez:
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The Clerk of Court shall issue summonses for Defendants Officer Sumrall, Officer

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Deeds, Nurse Sumrall, Watts, Henriod, Sawyer, Mingo, Lopez, Wall, and Casarez and

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deliver the same, to the U.S. Marshal for service.

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The Clerk shall send to Plaintiff ten (10) USM-285 forms. The Clerk also shall send

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enough copies of the first amended complaint (ECF No. 21) and this order to the

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U.S. Marshal for service on Defendants. Plaintiff shall have thirty (30) days within

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which to furnish to the U.S. Marshal the required USM-285 forms with relevant

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information as to each Defendant on each form.

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Within twenty (20) days after receiving from the U.S. Marshal a copy of the USM-285

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forms showing whether service has been accomplished, Plaintiff must file a notice with

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the Court identifying which Defendant(s) were served and which were not served, if

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any.

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If Plaintiff wishes to have service again attempted on an unserved Defendant(s), then a

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motion must be filed with the Court identifying the unserved Defendant(s) and

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specifying a more detailed name and/or address for said Defendant(s), or whether some

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other manner of service should be attempted.

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IT IS FURTHER ORDERED that as to Defendants Filson, Dzurenda, and Gittere:
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The Clerk of the Court shall electronically SERVE a copy of this order and a copy of

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Plaintiff’s first amended complaint (ECF No. 21) on the Office of the Attorney General

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of the State of Nevada by adding the Attorney General of the State of Nevada to the

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docket sheet. This does not indicate acceptance of service.

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Subject to the findings of the screening order (ECF No. 24), within twenty-one (21)

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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)

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

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under seal. As to any of the named defendants for whom the Attorney General’s Office

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cannot accept service, the Office shall file, under seal, but shall not serve the inmate

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

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information. If the last known address of the defendant(s) is a post office box, the

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Attorney General's Office shall attempt to obtain and provide the last known physical

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address(es).

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

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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

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which the Attorney General has not provided last-known-address information, Plaintiff

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shall provide the full name and address for the defendant(s).

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

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defendant(s) shall file and serve an answer or other response to the first amended

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

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IT IS FURTHER ORDERED that service must be perfected within ninety (90) days from
the date of this order pursuant to Fed. R. Civ. P. 4(m).

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IT IS FURTHER ORDERED that Plaintiff shall serve upon defendant(s) or, if an

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appearance has been entered by counsel, upon their attorney(s), a copy of every pleading, motion

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

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

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

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counsel 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 Court

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may disregard any document received by a district judge or magistrate judge which has not been

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filed with the Clerk, and any document received by a district judge, magistrate judge, or the Clerk

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which fails to include a certificate showing proper service.

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DATED: January 3, 2019.

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UNITED STATES MAGISTRATE JUDGE

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