Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stewart v. Burns

United States District Court, D. Nevada

May 24, 2018

ROBERT EARL STEWART, Plaintiff,
v.
WARDEN BURNS, Defendants.

          ORDER (MOT. EARLY MEDIATION CONF. - ECF NO. 16; MOT. FOR APPOINT COUNSEL - ECF NO. 17)

          PEGGY A. LEEN, UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Plaintiff Robert Earl Stewart's (“Stewart”) Motion to Setback Early Mediation Conference (ECF No. 16) and Motion for Appointment of Counsel (ECF No. 17). These Motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.

         BACKGROUND

         Stewart was a prisoner in the custody of the Nevada Department of Corrections (“NDOC”) when he filed his complaint in April 2017. He has since been released and is no longer incarcerated. This case arises from his allegations, pursuant to 28 U.S.C. § 1983, that defendant Warden Burns violated his civil rights. Stewart is proceeding in this action pro se, which means he is not represented by an attorney. See LSR 2-1. He has received permission to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 and LSR 1-1. See IFP App. (ECF No. 1); Order (ECF No. 10).

         Upon review of the complaint for screening purposes, the court determined that it stated a plausible claim of unlawful imprisonment against Warden Burns based on the miscalculation of his restored good time credits. See Apr. 25, 2017 Screening Order (ECF No. 4). The court stayed the case for 90 days to allow the parties an opportunity to settle their dispute through the Inmate Early Mediation Program before the filing of an answer or starting the discovery process. Id.; see also Order (ECF No. 7) (setting the mediation conference date). However, the parties did not reach a settlement during the mediation and the case was returned to the normal litigation track. See Mins. of Proceedings (ECF No. 8).

         The court therefore entered an Order (ECF No. 10) on July 26, 2017, directing electronic service of the Complaint on the Nevada Office of the Attorney General (“Attorney General”) and instructing that a notice be filed with the court indicating the names of the defendant(s) for whom the Attorney General accepts service, and those it does not. Id. If the Attorney General accepted service of process for any named defendant(s), such defendant(s) were instructed to file and serve an answer or other response to the complaint within 60 days.

         After the court entered the order directing service, Mr. Stewart filed several motions: Motion for Jury Trial (ECF No. 11), filed August 9, 2017; Motion for Copies (ECF No. 13), filed August 18, 2017; Motion to Setback to Early Mediation Conference (ECF No. 16) and Motion for Appointment of Counsel (ECF No. 17), both filed September 14, 2017. The district judge denied the motion for jury trial as premature to the extent the motion sought a trial date. Order (ECF No. 15). The undersigned magistrate judge denied the motion for copies because a Freedom of Information Act request must be addressed to a government agency having the records requested, and must be filed in accordance with applicable rules and regulations. Order (ECF No. 26).

         On August 16, 2017, the Attorney General accepted service on behalf of Defendant Harold Mike Byrne, erroneously sued as Warden Mr. Burns. See Notice Acceptance of Service (ECF No. 12). Defendant Byrne timely filed his Answer (ECF No. 18) on September 26, 2017.

         The court entered a Scheduling Order (ECF No. 19) on September 26, 2017, directing that discovery shall be completed by December 26, 2017. Id. ¶ 3(a). The Scheduling Order also provided deadlines to: (i) amend pleadings or join additional parties, November 24, 2017; (ii) file discovery motions, January 10, 2018; and (iii) file dispositive motions, February 9, 2018. See id. ¶¶ 1-2, 5-6.

         Currently pending before the district judge are Defendant Byrne's Motion to Dismiss (ECF No. 20) and Motion for Summary Judgment (ECF No. 24).

         DISCUSSION

         I. Motion to Setback Early Mediation Conference (ECF No. 16)

         Mr. Stewart's motion asks the court for a settlement. He states that the court “already said [his] civil rights were violated” and ordered the Attorney General to settle. But it did not attempt to do so. He asks that the court award him $2, 757 from NDOC. He attaches a copy of the Screening Order (ECF No. 4) and Order (ECF No. 15) denying his motion for jury trial.

         Mr. Stewart has misinterpreted the purpose of the Screening Order and referral to the Inmate Early Mediation Program. A federal court is required to screen an IFP plaintiff's complaint before allowing the case to move forward, issuing summonses, and requiring a responsive pleading. 28 U.S.C. § 1915; Jones v. Bock, 549 U.S. 199, 213-14 (2007). The court must conduct a preliminary screening in any case in which a prisoner seeks compensation from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. ยง 1915A(a). In screening the complaint, the court must identify any colorable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.