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Birch v. Lombardo

United States District Court, D. Nevada

December 6, 2017

FRANK PATRICK BIRCH, JR., Plaintiff,
v.
SHERIFF JOE LOMBARDO, et al., Defendants.

          ORDER

          C.W. Hoffman, Jr. United States Magistrate Judge.

         Presently before the court is Nevada state-prison inmate Frank Patrick Birch, Jr.'s (“Birch”) Sworn Statement (ECF No. 53), filed on March 14, 2017. Defendant Joe Lombardo (“Lombardo”) filed a response (ECF No. 57) on March 30, 2017. Birch filed a reply (ECF No. 64) on April 5, 2017.

         Also before the court is Birch's Motion/Request for Order (ECF No. 65), filed on April 5, 2017. Defendants did not file a response.

         Also before the court is Birch's Motion to Strike (ECF No. 66), filed on April 5, 2017. Lombardo filed a response (ECF No. 70) on April 19, 2017. Defendants NaphCare, Inc. (“NaphCare”) and Larry Williamson, M.D. (“Dr. Williamson”) filed a joinder (ECF No. 71) to Lombardo's response on April 20, 2017. Birch filed a reply (ECF No. 76) on April 26, 2017.

         Also before the court is Birch's Motion for Order of Prohibition Against NaphCare (ECF No. 67), filed on April 12, 2017. NaphCare and Dr. Williamson filed a response (ECF No. 74) on April 27, 2017. Birch filed a reply (ECF No. 84) on May 10, 2017.

         Also before the court is Birch's Motion for Order of Prohibition Against Sheriff (ECF No. 68), filed on April 12, 2017. Lombardo did not file a response.

         Also before the court is Birch's Motion for Sheriff to Stop Offering False Evidence (ECF No. 69), filed on April 12, 2017. Lombardo filed a response (ECF No. 72) on April 26, 2017. NaphCare and Dr. Williamson filed a joinder (ECF No. 73) to Lombardo's response on April 26, 2017. Birch filed a reply (ECF No. 83) on May 10, 2017.

         Also before the court is Birch's request for certificate of interested parties (ECF No. 75), filed on April 26, 2017. NaphCare and Dr. Williamson filed a response (ECF No. 82) on May 10, 2017. Lombardo filed a joinder (ECF No. 89) to NaphCare and Dr. Williamson's response on May 23, 2017. Birch did not file a reply.

         Also before the court is NaphCare and Dr. Williamson's Motion for Entry of a Protective Order (ECF No. 90), filed on May 25, 2017. Birch filed a response (ECF No. 93) on June 1, 2017. Lombardo filed a joinder (ECF No. 94) to the motion for protective order on June 5, 2017. NaphCare and Dr. Williamson filed a reply (ECF No. 96) on June 8, 2017.

         Also before the court is Birch's Motion to Strike (ECF No. 91), filed on May 25, 2017. Defendants did not file a response.

         Also before the court is Birch's Exhibits to Show Abuse and Neglect (ECF No. 92), filed on May 26, 2017. NaphCare and Dr. Williamson filed an objection (ECF No. 95) on June 6, 2017. Lombardo filed a response (ECF No. 97) on June 9, 2017. Birch filed a reply (ECF No. 98) on June 22, 2017.

         Also before the court is Birch's Motion to Compel Discovery and for Sanctions (ECF Nos. 100, 101), filed on June 29, 2017. NaphCare and Dr. Williamson filed a response (ECF Nos. 102, 103) on July 12, 2017. Birch did not file a reply.

         Also before the court is Birch's Motion for 90 Day Extension of Time for Good Cause (ECF No. 106), filed on July 21, 2017. Lombardo filed a notice of non-opposition (ECF No. 109) on July 31, 2017. NaphCare and Dr. Williamson did not file a response.

         I. BACKGROUND

         This case arises out of a dispute regarding whether Birch received adequate medical care while incarcerated at the Clark County Detention Center. At the screening stage of this case, the court allowed Birch to proceed on his claim for deliberate indifference to serious medical needs related to weight loss, a heart condition, and back pain against Lombardo, Dr. Williamson, and NaphCare. (Screening Order (ECF No. 6); Compl. (ECF No. 7).) The court subsequently dismissed Lombardo from this case. (Mins. of Proceedings (ECF No. 126).) Further, the court granted in part and denied in part NaphCare and Dr. Williamson's motion to dismiss and permitted Birch to file an amended complaint. (Id.)

         Birch's amended complaint brings what the court understands to be a claim for deliberate indifference to serious medical needs related to his heart condition and back pain against NaphCare. (Am. Compl. (ECF No. 125).) Dr. Williamson is no longer named as a defendant. (See id.) Thus, the only remaining claim is Birch's deliberate indifference claim against NaphCare. NaphCare's motion for summary judgment (ECF No. 127) is pending before the United States district judge assigned to this case. This order addresses all other pending motions in this case.

         II. SWORN STATEMENT (ECF NO. 53)

         Birch's document titled “Sworn Statement” is an amalgam of assertions regarding his medical condition, various references to Bates-stamped documents, arguments regarding the prison's policies and grievance procedures, and statements regarding Aramark, which Birch states is a company responsible for serving prison meals. Birch also attaches a photograph, medical records, and various inmate grievances to his sworn statement. Lombardo responds that the sworn statement does not request specific relief and therefore should be ignored. Lombardo also argues that to the extent Birch has complaints regarding prison conditions, Birch must exhaust prison administrative procedures before seeking relief from the court.

         Under Local Rule IA 7-1,

[a]ll communications with the court must be styled as a motion, stipulation, or notice, and must be filed in the court's docket and served on all other attorneys and pro se parties. The court may strike any case-related correspondence filed in the court's docket that is not styled as a motion, stipulation, or notice.

         Given that Birch's sworn statement is not filed as a motion and that it is unclear what relief Birch seeks by way of this filing, the court will strike the document under Local Rule IA 7-1. If Birch seeks relief from the court, he is advised to style his requests for relief as motions. Although the court will liberally construe Birch's filings because he is not represented by an attorney, Birch nevertheless is required to follow the same rules of procedure that govern ...


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