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Hooks v. Bannister

United States District Court, D. Nevada

December 2, 2014

JERRY HOOKS, Plaintiff,
BRUCE BANNISTER, et al., Defendants

Jerry Hooks, Plaintiff, Pro se, Ely, NV.

For Bruce Bannister, Ronald Bryant, Harold Byrne, James Gregory Cox, Cruse, Mr. Dolezal, Drain, Sheryl Foster, Godoy, Angela Gregersen, Holmes, Koehn, Steven Smith, Calvin Peck, [14] Amended Complaint, Rene Baker, [14] Amended Complaint, Defendants: Peter Kevin Keegan, LEAD ATTORNEY, .Nevada Attorney General's Office, Carson City, NV.

ORDER re: Doc. ## 75, 84 and 95


I. Background

Plaintiff Jerry Hooks (Hooks) is a prisoner in custody of the Nevada Department of Corrections (NDOC) at the Ely State Prison (ESP). Plaintiff commenced a civil right action on December 26, 2012. (Doc. # 1.)[1] Plaintiff was ordered to file an amended complaint to conform to the court's order of March 14, 2013. (Doc. # 6.) An amended complaint was submitted on April 15, 2013. (Doc. # 14.) His action, predicated upon 42 U.S.C. § § 1983 and 1985, sued fifty-one (51) defendants who are associated with the NDOC.

The amended complaint was screened by District Judge Robert C. Jones on September 6, 2013. (Doc. # 35.) Counts I and II were not found to set forth viable civil rights claims and were dismissed with leave to amend. (Id.). Counts III, VII and IX were determined to set forth colorable Eighth Amendment claims against Defendants Koehn, Gregerson, Holmes, Smith(s), Bannister, Byrne, Cox, Boss, Baker and Foster and colorable First Amendment retaliation claims against Defendants Koehn, Gregerson and Holmes.

Judge Jones concluded Count IV stated no plausible Eighth Amendment or due process claim. Count V was dismissed as to Defendant Weiss. Count VI was determined to be duplicative to Count IV and was dismissed. Count VIII did not state any cognizable liberty interest and was dismissed. Count X appeared to assert a sexual harassment complaint which Plaintiff pursued in response to notice of charges filed against Plaintiff. Plaintiff was found not guilty of the charges and Judge Jones could therefore discern no violations of Plaintiff's constitutional rights. Last, Judge Jones concluded Plaintiff's allegations against twenty-eight other defendants averred no colorable claims against them and were dismissed.

Summarizing, therefore, Plaintiff's surviving causes of action assert his Eighth Amendment rights were violated when certain defendants were deliberately indifferent toward Plaintiff's medical needs and that his First Amendment rights were violated when Defendants allegedly retaliated against him.

Plaintiff's motion to amend and supplement his complaint (Doc. # 42) was denied. (Doc. # 50.) Several earlier motions to amend or alter the court's screening order (Docs. ## 47, 48, 51) were also denied. (Docs. ## 50, 69.) Plaintiff filed a notice of appeal as to certain orders (Doc. # 57) but the Ninth Circuit Court of Appeals dismissed Plaintiff's Appeal. (Doc. # 108.)

Defendants have filed a motion for summary judgment. Defendants' argue:


Defendants are entitled to judgment as a matter of law because: (1) Plaintiff cannot present a genuine dispute as to any material fact because Defendants did not act with deliberate indifference towards Plaintiff's health or safety in violation of his Plaintiff's Eighth Amendment (sic); and (2) Plaintiff cannot present a genuine dispute as to any material fact because Defendants did not violate Plaintiff's First Amendment Rights by retaliating against him.

Doc. # 75 at 2 (bold in the original).

Certain of Defendants' arguments are predicated upon assertions they are entitled to summary judgment because there is no genuine issue of material fact as to Plaintiff's civil rights claims. Other causes of action are attacked under a theory Plaintiff failed to exhaust his administrative remedies (i.e., incomplete satisfaction of the grievance process). Defendants also allege certain of Plaintiff's averments do not satisfy the Iqbal requirements of a " short and plain statement of the claim showing [Plaintiff] is entitled to relief." (Doc. # 75 at 21, citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).) Additionally, certain defendants assert a " qualified immunity affirmative defense" as well as other arguments relating to his retaliation claims.

The purpose of this order is to address whether Plaintiff should be allowed to undertake " targeted discovery" with regard to Defendants' arguments on summary judgment.

II. The History Relating to Plaintiff's Proposed Discovery Motions

Before the court is Plaintiff's " F.R.C.P. 56(d) Motion for Deferring Time to Respond" (Doc. # 84) and Plaintiff's request for leave to undertake targeted discovery (Doc. # 95, filed as " Reply to the Court's Requirement for Requested Discovery Process"). Plaintiff's motions were filed relative to Defendants' Motion for Summary Judgment. Defendants opposed Plaintiff's Motion for Deferring Time to Respond. (Doc. # 86.)

By way of background, Plaintiff on March 14, 2014, filed a motion to conduct discovery. (Doc. # 61.) The court denied that request because Defendants had not yet responded to Plaintiff's complaint. (Doc. # 65.) The Defendants requested an extension of time to respond to Plaintiff's complaint. (Doc. # 71) and Defendants were allotted an extension to May 12, 2014. (Doc # 72.)[2]

The Defendants then filed their motion for summary judgment.[3] (Doc. # 75.) At a status conference which followed, Plaintiff asserted he needed time to conduct discovery to be able to respond to Defendants' motion for summary judgment. The court advised Plaintiff:

If Plaintiff believes that he needs to conduct discovery in order to respond to Defendants' motion for summary judgment, he may file a motion under Federal Rule of Civil Procedure 56(d), supported by an affidavit or declaration, stating that he needs to conduct discovery in order to present facts essential to oppose the motion, and seeking an order deferring the time to respond to Defendants' motion for summary judgment. Fed.R.Civ.P. 56(d). If Plaintiff intends on filing such a motion, he should do so promptly. See Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n. 5 (9th Cir. 2009). In any such motion, Plaintiff must specifically identify the relevant information he seeks to discover and show that there is a basis for believing that the information sought actually exists. Id.

Doc. # 80 at 5.

On May 27, 2014, Plaintiff field a motion to enlarge the time (30 days) to respond to Defendants' motion for summary judgment (Doc. #82), which the court granted (Doc. # 73). Plaintiff's response to Defendants' motion for summary judgment was extended to July 7, 2014. (Id.)

On June 5, 2014, Plaintiff filed his motion to defer responding to Defendants' motion to conduct discovery (Doc. # 84) which is, in part, the subject of this order. The court conducted a hearing regarding Plaintiff's motion on June 18, 2014. The court found that Plaintiff's motions for extension of time to undertake discovery did not satisfy Fed.R.Civ.P. 56(d) in that the motions did not specifically identify the relevant discovery Plaintiff sought to undertake, nor did Plaintiff explain how that discovery, if permitted, might preclude the entry of summary judgment. Resolution of Defendants' motion for summary judgment, however, was stayed until the court had reviewed the proposed discovery Plaintiff wanted to undertake. Plaintiff was directed to file a memorandum regarding the proposed " targeted" discovery (i.e., discovery specifically tailored to the issues presented by Defendants' motion for summary judgment), no later than Friday, July 11, 2014. (Doc# 89 at 2.)

On June 26, 2014, Plaintiff sought additional time to outline his proposed discovery. (Doc. # 90.) The court denied Plaintiff's request and directed him to comply with the July 11, 2014, deadline. The court stated as follows:

If Plaintiff can correlate the relevance of his targeted discovery to the issues presented by Defendants' motion for summary judgment, then Plaintiff will likely be allowed to undertake that discovery. If he fails in that obligation, then this discovery will not be permitted. See, e.g., Nieves-Romero v. U.S., 715 F.3d 375, 381 (1st Cir. 2013); Pa. Dep't of Public Welfare v. Sebelius, 674 F.3d 139, 157 (3rd Cir. 2012).
At the court's hearing on various motions on June 18, 2014, the court provided the parties--primarily Plaintiff--a fairly liberal deadline and briefing schedule. Granting Plaintiff's motion would likely cause all of those deadlines to be vacated and rescheduled. Since there isn't even a current deadline for Plaintiff's opposition to Defendants' motion for summary judgment (the court stayed that deadline until the question of motion-related discovery has been resolved), Plaintiff is not prejudiced by any denial of his motion.
Therefore, Plaintiff's motion (Doc. # 90) is DENIED, and Plaintiff shall adhere to the deadline for submission of his proposed targeted discovery, i.e., July 11, 2014. Because of the upcoming holiday, counsel for Defendants shall fax or email a copy of this ...

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