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Redeker v. Cox

United States District Court, D. Nevada

June 22, 2017

ARIE REDEKER, Plaintiff,
v.
JAMES COX, et al., Defendants.

          MOTION FOR A CONTINUANCE, CONTEMPT, AND/OR SANCTIONS AND OTHER RELIEF (ECF NO. 44)

          CAM FERENBACH, UNITED STATES MAGISTRATE JUDGE

         This matter involves pro se Plaintiff Arie Redeker's civil rights action against current and former employees of the Nevada Department of Correction (“NDOC”), including James Cox, Dwight Neven, Chilton Leach, Cynthia Sablica, Jacob Murphy, Robert Bannister, and Romeo Aranas (“Defendants”).[1]Before the Court is Redeker's Motion for a Continuance, Contempt and/or Sanctions and Other Relief (ECF No. 44); the Defendants' Response (ECF No. 45); and Redeker's Reply (ECF No. 46). For the reasons stated below, Redeker's motion is granted in part and denied in part.

         I. Background

         Plaintiff Arie Redeker is currently incarcerated at High Desert State Prison (“HDSP”). Redeker brought civil rights claims under 42 U.S.C. § 1983 for First and Eighth Amendment violations, and a state law claim for negligent supervision, against the Defendants. Redeker's claims arise from the Defendants alleged failure to obtain prompt treatment for his cataracts which caused significant deterioration of his eyesight. See ECF Nos. 16; 44 at 2. On January 20, 2017, this Court issued a Discovery Plan and Scheduling Order. See ECF No. 32. The Court entered an order extending the discovery plan and scheduling order deadlines on April 6, 2017. See ECF No. 42.

         II. Discussion

         Redeker's Motion requests the following relief from the Court: (1) an extension of discovery and all other deadlines; (2) a hearing to address discovery issues related to medical records and discovery responses; (3) monetary sanctions and a finding of contempt against the Defendants and Defendants' counsel; and (4) an entry of default against co-defendants Linda Adams and George Leaks.

         A. Request to Extend Discovery and Scheduling Order Deadlines

         Redeker's Motion requests that this Court extend the deadlines set by the Court's previous discovery plan and scheduling order. See ECF Nos. 44 at 6; 46 at 6. The previous discovery plan and scheduling order included the following deadlines:

Discovery Completion

September 18, 2017

Deadline to add parties

June 19, 2017

Deadline to amend pleadings

June 19, 2017

Expert disclosures

July 21, 2017

Rebuttal expert disclosures

August 21, 2017

Dispositive motions

October 17, 2017

Joint Pretrial Order

November 17, 2017

Interim Status Report

July 21, 2017

See ECF No. 42 at 4.

         Federal Rule of Civil Procedure 16(b)(4) governs the modification of discovery plans and scheduling orders. Fed.R.Civ.P. 16(b)(4) provides that “[a] schedule may be modified only for good cause and with the judge's consent.” The good cause inquiry focuses primarily on the movant's diligence. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294-95 (9th Cir. 2000).

         Local Rule 26-4 supplements Fed.R.Civ.P. 16 and provides that discovery plans and scheduling orders may be modified for good cause, provided that a motion to extend is made “no later than twenty-one (21) days before the expiration of the subject deadline.” See LR 26-4; see also Local Rule IA 6-1.[2]Additionally, a motion to extend the discovery deadline must include: (1) a statement specifying the discovery completed; (2) a specific description of the discovery that remains to be completed; (3) the reasons why the deadline was not satisfied or the remaining discovery not completed within the time set by the discovery plan; and (4) a proposed schedule for completing all remaining discovery.[3] The Court has broad discretion in supervising the pretrial phase of litigation. See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002).

         The Defendants do not oppose Redeker's request for an extension. See ECF No. 45 at 4. Accordingly, the Court grants Redeker's request to extend the discovery plan and scheduling order deadlines. The Court notes that the Defendants “would have stipulated and agreed to an extension of time and filed such stipulation with this Court had Plaintiff requested such.” Id. In the future, if necessary, Redeker is advised to first coordinate with the Defendants before filing a motion.

         The Court will grant a 90-day extension of time for the discovery and dispositive motion deadlines as described below:

Discovery Completion

December 29, 2017

Deadline to add parties

September 18, 2017

Deadline to amend pleadings

September 18, 2017

Expert disclosures

October 21, 2017

Rebuttal expert disclosures

November 20, 2017

Dispositive motions

January 17, 2018

Joint Pretrial Order

February 16, 2018

Interim Status Report

October 21, 2017

         B. Request for an Evidentiary Hearing on Discovery Issues

         This case is in the discovery phase of litigation. As part of discovery, Redeker is requesting to review his medical records and the Defendants' discovery responses. See ECF Nos. 44 at 2; 46 at 2-3. But he alleges that NDOC Administrative Regulations (“AR”) are making litigation and discovery “next to impossible” by, among other things, requiring him to “request appointments that … put time limits and other restrictions” on his ability to review discovery. Id. According to Redeker, a hearing is necessary to address issues related to incomplete and deficient medical records and discovery responses. See ECF Nos. 44 at 3-4.

         With respect to medical records, Redeker requests a hearing to determine why some of his medical files were “removed, altered, and edited, ” and why he is being “denied reasonable access to his medical files.” Id. For the discovery responses, Redeker requests a hearing to determine why it is taking months to arrange for him to review discovery responses and “who is responsible for the delay.” Id. The Defendants argue that a hearing is not necessary for two reasons. See ECF No. 45 at 2-3. First, the Defendants aver that Redeker has been provided access to review his entire medical file. Id. Second, the Defendants assert that Redeker has neither provided specific information on what items are allegedly missing from his medical files, nor the dates he allegedly requested to review records or the actual review dates. Id. at 3-4.

         Having read and considered the present motion, response, and reply, the Court is not persuaded that a hearing is necessary at this time. Redeker's argues that the provided medical records are incomplete and directs the Court to two NDOC 2569 forms that he found in his medical files on April 24, 2017 and May 11, 2017. See ECF Nos. 44 at 3; 46 at 2-3. The NDOC 2569 form Redeker found while reviewing his medical files in April was allegedly entitled “Thinned Documentation” and indicated that “files, notes, charts, and other items” were removed prior to his review. See ECF No. 46 at 2-3. The Defendants acknowledge that “HDSP medical records staff” initially “provided Plaintiff with only his most recent medical records to review.” See ECF No. 45 at 3. After Redeker informed Defendants' Counsel of the incomplete records, Redeker “was promptly scheduled for an appointment to review his entire medical file on May 11, 2017.” Id. After reviewing his medical records in May, however, Redeker argues that “the file still contained a DOC 2569 form, was not complete.” See ECF No. 46 at 3. Based on this form, Redeker asserts that “he is being denied access to his files and has no assurances his medical files are complete.” See ECF No. 46 at 3.

         Redeker is not required to submit copies of those forms to this Court, but must at a minimum provide the Court with detail as to which documents are missing and their relevance to his claims. As part of discovery, Redeker is entitled to review his medical files. See Fed. R. Civ. P. 26(b) (“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim … and proportional to the needs of the case…”). Yet the Court cannot ignore longstanding Supreme Court precedent that prison officials' policies, practices, and regulations ...


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