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McIntyre v. Naphcare Inc.

United States District Court, D. Nevada

August 24, 2017

DWIGHT MCINTYRE, Plaintiff,
v.
NAPHCARE INC. et al., Defendants.

          ORDER

         I. DISCUSSION

         On July 13, 2017, the Court issued a screening order permitting some claims to proceed, dismissing some claims with prejudice, and dismissing other claims with leave to amend. (ECF No. 4 at 8-9). The Court granted Plaintiff 30 days from the date of that order to file an amended complaint curing the deficiencies of the complaint. (Id. at 9). The Court specifically stated that if Plaintiff chose not to file an amended complaint, the action would proceed against Defendants Frank Ryan, Brian Poirier, and Ted Hanf for deliberate indifference to serious medical needs (counts I and II) only. (Id. at 10). Plaintiff has not filed an amended complaint. Pursuant to the screening order, this action shall proceed against Defendants Frank Ryan, Brian Poirier, and Ted Hanf for deliberate indifference to serious medical needs (counts I and II) only.

         II. CONCLUSION

         For the foregoing reasons, IT IS ORDERED that, pursuant to the Court's screening order (ECF No. 4), this action shall proceed against Defendants Frank Ryan, Brian Poirier, and Ted Hanf for deliberate indifference to serious medical needs (counts I and II) only.

         IT IS FURTHER ORDERED that given the nature of the claim(s) that the Court has permitted to proceed, this action is STAYED for ninety (90) days to allow Plaintiff and Defendant(s) an opportunity to settle their dispute before the $350.00 filing fee is paid, an answer is filed, or the discovery process begins. During this ninety-day stay period, no other pleadings or papers shall be filed in this case, and the parties shall not engage in any discovery. The Court will refer this case to the Court's Inmate Early Mediation Program, and the Court will enter a subsequent order. Regardless, on or before ninety (90) days from the date this order is entered, the Office of the Attorney General shall file the report form attached to this order regarding the results of the 90-day stay, even if a stipulation for dismissal is entered prior to the end of the 90-day stay. If the parties proceed with this action, the Court will then issue an order setting a date for Defendants to file an answer or other response. Following the filing of an answer, the Court will issue a scheduling order setting discovery and dispositive motion deadlines.

         IT IS FURTHER ORDERED that "settlement" may or may not include payment of money damages. It also may or may not include an agreement to resolve Plaintiff's issues differently. A compromise agreement is one in which neither party is completely satisfied with the result, but both have given something up and both have obtained something in return.

         IT IS FURTHER ORDERED that if the case does not settle, Plaintiff will be required to pay the full $350.00 filing fee. This fee cannot be waived. If Plaintiff is allowed to proceed in forma pauperis, the fee will be paid in installments from his prison trust account. 28 U.S.C. § 1915(b). If Plaintiff is not allowed to proceed in forma pauperis, the $350.00 will be due immediately.

         IT IS FURTHER ORDERED that if any party seeks to have this case excluded from the inmate mediation program, that party shall file a "motion to exclude case from mediation" on or before twenty-one (21) days from the date of this order. The responding party shall have seven (7) days to file a response. No reply shall be filed. Thereafter, the Court will issue an order, set the matter for hearing, or both.

         IT IS FURTHER ORDERED that the Clerk of the Court shall electronically SERVE a copy of this order, the original screening order (ECF No. 4) and a copy of Plaintiff's complaint (ECF No. 5) on the Office of the Attorney General of the State of Nevada, attention Barbara Fell.

         IT IS FURTHER ORDERED that the Attorney General's Office shall advise the Court within twenty-one (21) days of the date of the entry of this order whether it will enter a limited notice of appearance on behalf of Defendants for the purpose of settlement. No defenses or objections, including lack of service, shall be waived as a result of the filing of the limited notice of appearance.

         REPORT OF ATTORNEY GENERAL RE: RESULTS OF 90-DAY STAY

         NOTE:ONLYTHEOFFICEOFTHEATTORNEYGENERALSHALLFILETHISFORM. THE INMATE PLAINTIFF SHALL NOT FILE THIS FORM.

         On___ [the date of the issuance of the screening order], the Court issued its screening order stating that it had conducted its screening pursuant to 28 U.S.C. § 1915A, and that certain specified claims in this case would proceed. The Court ordered the Office of the Attorney General of the State of Nevada to file a report ninety (90) days after the date of the entry of the Court's screening order to indicate the status of the case at the end of the 90-day stay. By filing this form, the Office of the Attorney General hereby complies.

         REPORT ...


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