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Walker v. Miller

United States District Court, D. Nevada

January 26, 2018

JOHN WALKER, Plaintiff,
v.
WILLIAM MILLER, et al., Defendants.

          ORDER, RE: ECF, 104

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE

         Before the court is Plaintiff's Motion to Amend (2nd Amend.) Civil Rights Complaint and proposed Second Amended Complaint (SAC). (ECF No. 104.) Defendants filed a response (ECF No. 105), and Plaintiff filed a reply (ECF No. 108).

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. The events giving rise to this action took place while Plaintiff was housed at Northern Nevada Correctional Center (NNCC). Plaintiff's original complaint was filed on December 14, 2015. (ECF No. 1-1.) The court issued its screening order on April 22, 2016. (ECF No. 4.) Plaintiff was allowed to proceed with a failure to protect claim under the Eighth Amendment against Sergeant Miller, Correctional Officer Case, Food Service Supervisor Scott, Hannah Skulstad, and Caseworker Mears; however, NNCC Warden Isidro Baca and NNCC Associate Warden Lisa Walsh were dismissed. (ECF No. 4.)

         The court issued a scheduling order on December 22, 2016, which, among other things, gave Plaintiff until February 20, 2017, to join new parties or file a motion for leave to amend. (ECF No. 32 at 1-2.)

         On March 1, 2017, Plaintiff filed a motion to join additional parties. (ECF No. 40.) At that time, Plaintiff stated that investigation revealed new information regarding the responsibility for failing to protect him while working in the culinary. (ECF No. 40.) He sought to add Associate Warden Shreckengost and Warden Isidro Baca as defendants because he learned that there was a shortage of correctional officers within the culinary. (Id.) He also asked the court to dismiss defendants Skulstad and Scott, stating they were not directly responsible for the treatment of Plaintiff. (Id.)

         The court issued a minute order granting Plaintiff leave to file a motion to amend after the expiration of the deadline, advising Plaintiff that it needed to be accompanied by the proposed amended pleading. (ECF No. 44.) Plaintiff was given seven days to lodge a proposed amended complaint. (Id.)

         Plaintiff filed a motion to amend and proposed first amended complaint (FAC) which named Assistant Warden Shreckengost, Warden Baca, Food Services Supervisor Scott Kahler, Caseworker Mears, William Miller, Justin Case, and Holly Skulstad. (ECF Nos. 49, 49-1.)

         On March 14, 2017, the court issued a minute order granting Plaintiff's motion to file an amended complaint, and ordered the FAC filed. (ECF No. 51.) The FAC was filed as ECF No. 52.

         The deadlines for discovery and dispositive motions were extended, but there was no extension of the deadline to add parties or file a motion for leave to amend. (ECF No. 63.)

         Then, on May 9, 2017, Defendants filed a motion for clarification noting that when Plaintiff sought to amend his complaint, he informed the court he intended to dismiss Scott and Skulstad, but they were included in the FAC. (ECF No. 70.) In addition, they asserted that Plaintiff did not add new claims against Baca, but included the same allegations that were previously dismissed with prejudice. (Id.)

         The court held a hearing on May 22, 2017. (ECF No. 73.) After hearing from the parties, the court ordered that Scott Kahler and Holly Skulstad were dismissed from the action. (Id.) With respect to defendant Baca, the court amended its order to state that leave to amend was not given as to Baca, but granted Plaintiff leave to file a supplemental pleading to attempt to state a colorable claim as to Baca. (Id.)

         Plaintiff filed his supplemental pleading on June 2, 2017. (ECF No. 74.) Defendants filed a response on June 12, 2017. (ECF No. 75.) The supplemental pleading alleged: that Baca was warden at NNCCC and responsible for staffing of the institution, and if there was a shortage of personnel, he was required to contact the director and obtain necessary officers to run the prison; that Baca was aware of the lay out of the culinary with fourteen rooms that required inmate workers; that it required twenty-two inmate workers per shift; that the regulations required direct supervision of medium security inmate work detail; that the culinary required the use of knives, cleavers, ice picks, choppers, boiling oil, walk-in ovens and open flames to prepare food; that AR 411 requires direct supervision of the use of those tools and materials; that Baca toured areas and supervised staffing and knew culinary needed more than two officers to supervise the workers; and refused to assign necessary personnel; that he was aware, based on previous incidents, of the risk of serious harm to Plaintiff, and disregarded that risk; that Baca reduced the number of staff in the culinary, elevating the risk of assault; and, that Baca instituted a policy of forcing prisoners to work, including those who were physically vulnerable, and placed them in work assignments with prisoners known to be violent.

         On June 27, 2017, the court issued an order finding Plaintiff's supplemental pleading stated a colorable failure to protect claim ...


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