United States District Court, D. Nevada
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.)
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.
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.
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
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.
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.
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
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.
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.
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.
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.
STATES DISTRICT COURT ...