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Brand v. Cox

United States District Court, D. Nevada

January 25, 2018

THOMAS BRAND, Plaintiff,
v.
GREG COX, et al., Defendants.

          ORDER

         I. DISCUSSION

         On January 4, 2018, the Court issued a screening order dismissing some claims with leave to amend, dismissing other claims with prejudice, and permitting some claims to proceed. (ECF No. 3 at 12-13). 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 13). The Court specifically stated that if Plaintiff chose not to file an amended complaint, the action would proceed against Defendants Mullins (Count I - failure to protect); Rexwinkle and Keith (Count II - retaliation); and Rexwinkle and Moyle (Count II - due process) only. (Id.)

         Plaintiff did not file an amended complaint. Instead, Plaintiff filed a motion to proceed to mediation with “stipulation.” (ECF No. 5 at 1). Specifically, Plaintiff states that he wants to proceed to mediation but that he wants leave to amend his complaint to include the defendants dismissed without prejudice if settlement is not reached. (Id.) The Court grants the motion to proceed in part. If Plaintiff chooses to file an amended complaint, he must do so after the conclusion of the 90-day stay set forth by this order.

         Pursuant to the screening order, this action shall proceed against Defendants Mullins (Count I - failure to protect); Rexwinkle and Keith (Count II - retaliation); and Rexwinkle and Moyle (Count II - due process) only.

         II. CONCLUSION

         For the foregoing reasons, IT IS ORDERED that, pursuant to the Court's screening order (ECF No. 3), this action shall proceed against Defendants Mullins (Count I - failure to protect); Rexwinkle and Keith (Count II - retaliation); and Rexwinkle and Moyle (Count II - due process) only.

         IT IS FURTHER ORDERED that the motion to proceed with settlement with stipulation (ECF No. 5) is granted in part. If Plaintiff chooses to file an amended complaint, he must wait until after the conclusion of the 90-day stay.

         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. 3) and a copy of Plaintiffs complaint (ECF No. 4) on the Office of the Attorney General of the State of Nevada, by adding the Attorney General of the State of Nevada to the docket sheet. This does not indicate acceptance of service.

         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.

         UNITED STATES DISTRICT COURT ...


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