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Mitchell v. Cox

United States District Court, D. Nevada

May 15, 2014

TARZ MITCHELL, Plaintiffs,
v.
GREG COX, et al., Defendants.

ORDER

C. W. HOFFMAN, Jr., Magistrate Judge.

This matter is before the Court on Plaintiff's unopposed Motion to Compel (#31), filed December 17, 2013. It is also before the Court on Defendants' Motion to Stay Discovery (#33), filed December 24, 2013 and Plaintiff's Response (#37), filed January 8, 2014.

BACKGROUND

The complaint in this matter was originally filed on December 6, 2012, along with Plaintiff's motion/application for leave to proceed in forma pauperis. (#1). Because Plaintiff was a prisoner in the custody of the Nevada Department of Corrections, the complaint was screened pursuant to 28 U.S.C. ยง 1915A.[1] (#3). The screening order addressed each of the causes of action set forth by Plaintiff against the various defendants and addressed the claims as follows:

Count 1. The Court held that Plaintiff stated a colorable First Amendment claim against Defendants Cox, Burson, Foster, and Williams. The claim is based on the allegation that the defendants retaliated against Plaintiff for filing grievances about harassment and discrimination by filing baseless notices of charges against him.
Count 2. The Court held that Plaintiff stated colorable First Amendment (free exercise of religion), retaliation, RLUIPA, and Fourteenth Amendment equal protection claims against Defendants Williams, Burson, Cox, Foster, and Reyes. Count II is based largely on the allegation that Defendants cut his calories to less than the state and federal recommended 1200 daily calories and fed him roach infested food so that he would forego Kosher meals. It is further claimed that Defendants retaliated against Plaintiff for filing grievances regarded the alleged behavior.
Count 3. The Court dismissed Defendants Brian Sandoval, Catherine Cortez Masto, and Ross Miller for failure to state a claim upon which relief could be granted. The Court held, however, that Plaintiff stated colorable First Amendment, Fourteenth Amendment equal protection, and RLUIPA claims against Defendants Williams, Burson, and Dressen for allegedly permitting white Jews to observe Passover, but excluding black Jews.
Count 4. The Court held that Plaintiff stated colorable First Amendment (free exercise), retaliation, Fourteenth Amendment equal protection, and RLUIPA claims against Defendants Jones, Willett, and Courtney. The claims are based on alleged retaliation and racial discrimination against Plaintiff as a result of grievances filed.
Count 5. The Court held that Plaintiff stated colorable First Amendment (free exercise), retaliation, and Fourteenth Amendment equal protection claims against Defendants Williams, Burson (to the extent not duplicative of count III), Youngblood, Calderon, and Foster. The claims are based on the alleged refusal to allow Plaintiff to worship on the Sabbath and the cancelling of worship service in retaliation for filing grievances.
Count 6. The Court held that Plaintiff stated colorable Eighth Amendment excessive force, retaliation, and Fourteenth Amendment equal protection claims against Defendants Brown, Guerro, and Espinoza.

See Screening Order (#3). As a result of the screening order, Plaintiff's claims in count III against Defendants Sandoval, Cortez-Masto, and Miller were dismissed with prejudice and without leave to amend. All other claims were permitted to proceed.

After screening, the complaint was filed and the case stayed for ninety (90) days to permit the parties to participate in the Inmate Early Mediation Program. See Screening Order (#3) and Order (#5). The Nevada Attorney General's office made a limited appearance on behalf of the defendants to facilitate the mediation. On June 10, 2013, the Attorney General's office submitted a report indicating that the parties were unable to reach settlement during the 90-day stay. Consequently, Plaintiff's motion/application to proceed in forma pauperis was granted. (#8). On July 9, 2013, the Attorney General's office entered a notice of acceptance of service on behalf of the following defendants: James G. Cox, Brian Williams, Cheryl Burson, Sheryl Foster, Johnny Youngblood, Francis Dreesen, Oswald Reyes, Jimmy Jones, Dean Willet, Julio Calderon, and Canute Brown. See Notice of Acceptance Service (#11). The Attorney General's office declined to accept service on behalf of Defendant Nathan Courtney because he was no longer an employee of the Nevada Department of Corrections, but indicated it would file his last known address under seal pursuant to the Court's prior order (#8).[2] The Attorney General also declined to accept service on behalf of Defendants "C/O Guerro" and "C/O Espinoza" because they could not be identified as either present or former employees of the Nevada Department of Corrections.

On July 30, 2013, Plaintiff filed a motion identifying the unserved defendants and requesting issuance of a summons. See Mot. (#13). On October 31, 2013, Plaintiff's motion was granted to the extent that the Clerk was ordered to issue summons for Defendant Courtney and deliver a copy of the summons and complaint to the United States Marshal for service. See Order (#24). The Nevada Attorney General's office was ordered to file notice within 21-days of the order indicating whether it would accept service on behalf of Defendants Espinoza and Guerro based on the additional information provided by Plaintiff. To the extent it was unable to accept service and had access to the last known address, the Attorney General's office was ordered to provide that information under seal. A copy of the summons and complaint for Defendant Courtney were hand delivered by Court staff to the United States Marshal for service. To date, there is no record that Defendant Courtney has been served. On November 21, 2013, the Nevada Attorney General submitted the last known address for Defendant Espinoza. It does not appear that Defendant Espinoza has been served either.

On August 15, 2013, the appearing Defendants filed a motion requesting additional time to file a responsive pleading. (#14). The motion was granted ( see Order (#15)) and, thereafter, on October 3, 2013, the appearing Defendants filed a motion to dismiss. See Mot. (#17). On October 8, 2013, just after Defendants filed their motion to dismiss, Plaintiff filed a motion requesting that the Court enter a scheduling order. (#19). Because Defendants' motion to dismiss constituted a first appearance in this matter, Plaintiff's motion was granted. (#20). The discovery cutoff date was set for January 14, 2014.[3] The Scheduling Order also required any discovery motions to be filed by January 6, 2014. It set the dispositive motions deadline as February 13, 2014. Currently there are four motions pending: Plaintiff's Motion to ...


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