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Jones v. Neven

United States District Court, D. Nevada

February 26, 2018

CHRISTOPHER A. JONES, Plaintiff,
v.
DWIGHT NEVEN, et. al., Defendants.

          ORDER RE: ECF NOS. 329, 330

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.

         Plaintiff has filed a Motion to Modify the Scheduling Order Per FRCP 16(b) (ECF No. 329), and a corresponding Motion to Amend Pleading Pursuant to FRCP 15(a) (ECF Nos. 330, 330-1 to 330-4). The remaining defendant, Dr. Steven MacArthur, has filed a response to both motions. (ECF Nos. 332, 333.) Plaintiff has filed replies. (ECF Nos. 335, 336.)

         For the reasons set forth below, Plaintiff's motions are denied.

         I. BACKGROUND

         The court will endeavor to summarize the lengthy history of this case, as it pertains to resolution of these motions, as best it can.

         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. He originally filed his action in the Eighth Judicial District Court of the State of Nevada in Clark County on May 22, 2007, and the Defendants removed the action to federal court on August 15, 2007. (See ECF Nos. 1, 2, 2-1 to 2-3.) The case was assigned to District Judge Mahan and Magistrate Judge Foley. Shortly thereafter, on August 30, 2007, Plaintiff filed an amended complaint. (ECF Nos. 14, 14-1.) The court screened the amended complaint and allowed Plaintiff to proceed with the following claims: (1) an Eighth Amendment deliberate indifference claim in Count I based on allegations concerning housing Plaintiff with a smoker; (2) Eighth Amendment conditions of confinement claims in Count II regarding allegations of constant illumination and being forced to sleep on a concrete floor; and (3) an Eighth Amendment deliberate indifference claim related to Dr. MacArthur's alleged failure to advise Plaintiff that he tested positive for hepatitis C and regarding any available treatments, as well as a Nevada professional negligence claim based on those same allegations. (ECF No. 34.)

         The Defendants filed a motion to dismiss on February 8, 2008. (ECF No. 52.) Plaintiff filed a counter-motion to stay, where he requested a delay in ruling on the motion pursuant to what was then Federal Rule of Civil Procedure 56(f), now 56(d). Plaintiff asserted that he had not had an opportunity to review the exhibits supporting Defendants' motion, or to conduct any discovery.

         Judge Foley entered a scheduling order on March 31, 2008, requiring any request to modify the scheduling order or a motion seeking leave to amend to be filed within sixty days absent a showing of good cause. (ECF No. 63.)

         On May 14, 2008, Judge Mahan entered an order granting Defendants' motion, and denying Plaintiff's counter-motion to stay. (ECF No. 70.) Insofar as it is relevant to the motions currently pending before the court, the motion was granted as to Count III on the basis that the medical records showed that follow up appointments indicated there was no need for treatment as long as Plaintiff remained asymptomatic, and Plaintiff had never inquired about his lab results. The professional negligence claim was dismissed without prejudice for failing to adhere to the Nevada statute's affidavit requirement.

         Plaintiff filed a notice of appeal on June 6, 2008. (ECF No. 71.) The judgment had not been formally entered, and the Ninth Circuit dismissed for lack of jurisdiction; however, the judgment was subsequently entered (ECF No. 80), and Plaintiff filed another notice of appeal (ECF No. 83).

         The Ninth Circuit issued its memorandum decision on October 6, 2010. (ECF No. 90.) The Ninth Circuit affirmed the dismissal of the professional negligence claim without prejudice, but otherwise reversed and remanded. The Ninth Circuit concluded: Plaintiff did not have a meaningful opportunity to oppose the motion because the defendants had not served him with the documents filed under seal in support of his motion; he could not obtain and submit rebuttal evidence; the documents ordered attached to the verified amended complaint did not appear in the record; and, Plaintiff had not been given an opportunity to conduct discovery. The mandate issued on November 4, 2010. (ECF No. 91.)

         Defendants answered the amended complaint (ECF No. 103), and another scheduling order issued on January 5, 2011. (ECF No. 104.) Again, any request to modify the scheduling order or motion for leave to amend was to be filed within sixty days, absent a showing of good cause. On January 25, 2011, the court issued an order clarifying the scheduling order deadlines, and stated that any motion to amend was due by March 4, 2011 (absent a showing of good cause). (ECF No. 109.)

         On March 4, 2011, Plaintiff filed an amended complaint. (ECF Nos. 178, 178-1, 178-2.) The allegations and exhibits pertaining to Count III were the same, but he sought to revive the professional negligence claim. During this time period, the parties engaged in discovery, motions to compel were filed by the Plaintiff, and discovery was extended. On June 21, 2011, Judge Foley addressed a request by Plaintiff to modify the scheduling order to permit amendment to revive the professional negligence claim. (ECF No. 181.) Judge Foley denied the motion because Plaintiff still had not submitted the required affidavit. This was affirmed by Judge Mahan. (ECF No. 198.)

         On November 7, 2011, Plaintiff filed a motion to amend and proposed second amended complaint. (ECF Nos. 231, 231-1.) He asserted that he sought to clarify the defendants involved in Count I, clarify the part defendant Neven purportedly played in Count II, but made no changes relative to Count III. The motion was denied on February 16, 2012. (ECF No. 263.) The court found that the allegations were already included in the amended complaint, ...


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