United States District Court, D. Nevada
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,  Amended Complaint, Rene Baker,  Amended Complaint, Defendants: Peter Kevin Keegan, LEAD ATTORNEY.Nevada Attorney General's Office, Carson City, NV.
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE.
re: Doc. # 124
Before the court is Plaintiff's " Reimvocation of A.B.A. 6.11 Disbarment & Motion for Rule 11(c) Sanctions" (Doc. # 124) and his Notice of Motion (Doc. # 123). Plaintiff's motion includes two declarations of Plaintiff, Exhibit A (Doc # 124 at 9-10) and Exhibit B, ( id. at 11-19). Defendants have opposed. (Doc. # 126.) No reply memorandum was submitted by Plaintiff.
The court denies Plaintiff's motion (Doc. # 124) on two grounds, one procedural and one substantive.
As to the procedural deficiency in Plaintiff's motion, Plaintiff failed to provide Defendants, i.e., Defendants' counsel, an opportunity to withdraw or correct any irregularities in Defendants' earlier submissions. Fed.R.Civ.P. 11, upon which Plaintiff predicates his motion, includes a " Safe Harbor" provision. Rule 11(c)(2) provides as follows:
A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses including attorney's fees, incurred for the motion.
Thus, Plaintiff's motion could not be filed without first providing Defendants' counsel notice of Plaintiff's objections to counsel's submissions to allow counsel to correct or withdraw the submission. The failure to provide the required notice has been held to preclude an award of Rule 11 sanctions. Winterrowd v. American General Annuity Insurance Co., 556 F.3d 815, 826 (9th. Cir. 2009).
Substantively, even if Plaintiff's motion were properly before the court, Defendants have sufficiently rebutted Plaintiff's six citations of allegedly sanctionable actions. The six subjects of Plaintiff's motion are summarized in Defendants' opposition memorandum as follows:
(1) Plaintiff claims that Defense Counsel has " sought the Court's issuance of summary judgment by concealment of [a] neurology rpt. within his control . . . [that] was attached to the Jan. 30, 2011 (informal informative) kite by the Plaintiff." [#124 at 2];
(2) Plaintiff accuses Defense Counsel of withholding " another imperative piece of 'deliberate indifference' evidence from (Feb. 6, 2013) pharmacy e-mail, which contradicts his feigned posture that Hooks continued to be dispensed his complete blood pressure (B/P) & Hemorrhoidal regimen." [#124 at 2];
(3) Plaintiff accuses Defense Counsel of failing to propound the October 1, 2008, version of Ely State Prison (" ESP") Operating Procedure (" OP") 609. [#124 at 4];
(4) Plaintiff claims that Defense Counsel has failed to investigate the toxicity level at which Metoprolol is ...