Edmiston v. Sucido et al

Filing 17

ORDER - ECF No. 1 IFP Application is GRANTED. NDOC shall pay clerk from inmate account until full $350 filing fee has been paid. The Clerk of the Court will send a copy of this Order to Finance and to NDOC Chief Inmate Services. (Emai l (NEF) to Finance; copy mailed to NDOC on 1/11/2022.) Clerk shall SERVE AG this order and ECF No. 8 complaint (E-service 1/11/2022; Complaint via NEF regeneration.) AG shall file notice re acceptance of service within twenty-one (21) days of the d ate of entry of this order (2/1/2022); and file under seal addresses for Ds for which service not accepted. P must file motion re unserved Ds. If service accepted then answer/response to complaint due by within sixty (60) days from the dat e of this order (3/12/2022). Henceforth P shall serve Ds a copy of every pleading submitted for consideration, together with a certificate of service. This case is no longer stayed. Plaintiff's motion for a Rule 45 subpoena (ECF No. 15 ) and Plaintiff's motion in limine (ECF No. 16 ) are DENIED. Signed by Magistrate Judge William G. Cobb on 1/11/2022. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:21-cv-00245-MMD-WGC Document 17 Filed 01/11/22 Page 1 of 4

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

JUSTIN EDMISTON,

5

v.

6

Case No. 3:21-CV-00245-MMD-WGC
Plaintiff,

ORDER SETTING ACTION ON
LITIGATION TRACK AND DENYING
PLAINTIFF’S MOTIONS

SUCIDO, et al.,

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(ECF Nos. 15, 16)

Defendants.

This action began with a pro se civil-rights complaint filed pursuant to 42 U.S.C.
§ 1983 by a state prisoner. Plaintiff later filed an amended complaint, and he applied to
proceed in forma pauperis. (ECF Nos. 5, 1). Based on the financial information provided,
the Court finds that Plaintiff is unable to prepay the full filing fee in this matter.
The Court entered an order screening Plaintiff’s amended complaint on
November 12, 2021. (ECF No. 7). The screening order imposed a 90-day stay and the
Court entered a subsequent order in which the parties were assigned to mediation by a
court-appointed mediator.

(ECF Nos. 7, 13).

Settlement was not reached at the

mediation conference. (ECF No. 14).
The Court’s screening order expressly provided that “no pleadings or papers will
be filed in this case” “until the Court lifts the stay” of this action. ECF No. 7 at 9. Even
though the Court had not yet lifted the stay of this action, Plaintiff filed a motion seeking
a Rule 45 subpoena and a motion in limine after the mediation conference concluded.
(ECF Nos. 15, 16). The Court denies Plaintiffs’ motions for several reasons.
First, both motions were filed in violation of the Court’s order staying this action.
Second, no defendant has been served with process let alone appeared for the purpose
of defending against Plaintiff’s claims. So there is no defendant who can respond to
Plaintiff’s motions. Third, Plaintiff’s request for a Rule 45 subpoena does not comply with
many of that Rule’s requirements. For example, the motion does not identify who the
subpoena will be directed to, nor does it discuss what that person or entity is to do. Finally,
1

Case 3:21-cv-00245-MMD-WGC Document 17 Filed 01/11/22 Page 2 of 4

1

Plaintiff’s motion in limine is premature and too generalized. For example, Plaintiff does

2

not identify the specific evidence that any of his requests pertain to.

3

Plaintiff is advised that the time to engage in discovery—like seeking the

4

production of documents or deposition from non-parties using a Rule 45 subpoena—and

5

the time to engage in motion practice aimed at potential evidence for any trial in this

6

action—like filing motions in limine—will be established by Court orders to be entered

7

later. Plaintiff is cautioned that the Court will deny, as it does here, any motion for relief

8

that is filed before it enters the relevant scheduling order.

9
10

For the foregoing reasons, IT IS ORDERED that:
1.

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

11

GRANTED. Plaintiff shall not be required to pay an initial installment of the filing fee. If

12

this action is dismissed, the full filing fee must still be paid pursuant to 28 U.S.C.

13

§ 1915(b)(2).

14

2.

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

15

the necessity of prepayment of any additional fees or costs or the giving of security

16

therefor.

17

3.

Pursuant to 28 U.S.C. § 1915, as amended by the Prison Litigation Reform

18

Act, the Nevada Department of Corrections will forward payments from the account of

19

JUSTIN EDMISTON, #1047583 to the Clerk of the United States District Court, District of

20

Nevada, 20% of the preceding month's deposits (in months that the account exceeds

21

$10.00) until the full $350 filing fee has been paid for this action. The Clerk of the Court

22

will send a copy of this order to the Finance Division of the Clerk’s Office. The Clerk will

23

send a copy of this order to the attention of Chief of Inmate Services for the Nevada

24

Department of Corrections, P.O. Box 7011, Carson City, NV 89702.

25

4.

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

26

a copy of Plaintiff’s amended complaint (ECF No. 8) on the Office of the Attorney General

27

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

28

docket sheet. This does not indicate acceptance of service.
2

Case 3:21-cv-00245-MMD-WGC Document 17 Filed 01/11/22 Page 3 of 4

1
2
3

5.

Service must be perfected within ninety (90) days from the date of this order

pursuant to Fed. R. Civ. P. 4(m).
6.

Subject to the findings of the screening order (ECF No. 7), within twenty-

4

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

5

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

6

accepts service, (b) the names of the defendants for whom it does not accept service,

7

and (c) the names of the defendants for whom it is filing the last-known-address

8

information under seal. As to any of the named defendants for whom the Attorney

9

General’s Office cannot accept service, the Office shall file, under seal, but shall not serve

10

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

11

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

12

General's Office shall attempt to obtain and provide the last known physical address(es).

13

7.

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

14

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

15

summons, and specifying a full name and address for the defendant(s).

16

defendant(s) as to which the Attorney General has not provided last-known-address

17

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

18

8.

For the

If the Attorney General accepts service of process for any named

19

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

20

amended complaint (ECF No. 8) within sixty (60) days from the date of this order.

21

9.

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

22

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

23

document submitted for consideration by the Court.

24

document with the Court’s electronic-filing system, no certificate of service is required.

25

Fed. R. Civ. P. 5(d)(1)(B); Nev. Loc. R. IC 4-1(b); Nev. Loc. R. 5-1. However, if Plaintiff

26

mails the document to the Court, Plaintiff shall include with the original document

27

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

28

document was mailed to the defendants or counsel for the defendants. If counsel has
3

If Plaintiff electronically files a

Case 3:21-cv-00245-MMD-WGC Document 17 Filed 01/11/22 Page 4 of 4

1

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

2

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

3

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

4

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

5

magistrate judge, or the Clerk which fails to include a certificate showing proper service

6

when required.

7

10.

This case is no longer stayed.

8

11.

Plaintiff’s motion for a Rule 45 subpoena (ECF No. 15) and Plaintiff’s motion

9
10

in limine (ECF No. 16) are DENIED.
DATED: January 11, 2022.

11
12

UNITED STATES MAGISTRATE JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4