United States District Court, D. Nevada
ORDER (MOT. EARLY MEDIATION CONF. - ECF NO. 16; MOT.
FOR APPOINT COUNSEL - ECF NO. 17)
A. LEEN, UNITED STATES MAGISTRATE JUDGE
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.
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).
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).
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.
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).
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.
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,
pending before the district judge are Defendant Byrne's
Motion to Dismiss (ECF No. 20) and Motion for Summary
Judgment (ECF No. 24).
Motion to Setback Early Mediation Conference (ECF No.
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.
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. § 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