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Jones v. Bannister

United States District Court, D. Nevada

July 31, 2018

CHRISTOPHER A. JONES, Plaintiff,
v.
BRUCE BANNISTER, et al., Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Plaintiff Christopher A. Jones initiated this action under 42 U.S.C. § 1983 to assert claims based on alleged events that occurred while he was incarcerated at the Northern Nevada Correction Center. Plaintiff filed two objections to Judge Cooke's pretrial rulings. (ECF Nos. 100, 103.) The Court has reviewed Defendants' responses to these objections. (ECF Nos. 102, 105.) For the reasons discussed herein, Plaintiff's objections are overruled.

         II. RELEVANT BACKGROUND

         Following screening under 28 U.S.C. § 1915A, the Court permitted Plaintiff to proceed on the five claims alleged in the initial complaint-deliberate indifference to serious medical needs (Counts I, II), due process violations (Counts III, IV), and retaliation (Count V). (ECF No. 4.) Plaintiff then twice moved to amend his complaint-the first motion was to assert an additional retaliation claim (Count VI) and the second motion was to add an additional defendant. (ECF Nos. 34, 55.) The Court granted both motions. (ECF Nos. 36, 63.)

         On April 12, 2018, about a month after the Court granted Plaintiff's second motion to amend and after close of discovery, [1] Plaintiff filed a third motion to amend (“Motion to Amend”) to add Karen Gedney, who was inadvertently omitted as a named defendant, and to assert a claim for discrimination under the Americans with Disabilities Act (“ADA”).[2](ECF No. 86.) Defendants did not oppose Plaintiff's Motion to Amend as to Gedney, but opposed the Motion to Amend as it relates to the addition of an ADA claim. (ECF No. 91.) Plaintiff also filed a Motion for Court Appointed Expert that Defendants opposed. (ECF Nos. 59, 67.)

         Judge Cooke held a hearing on May 24, 2018, [3] and issued oral rulings denying the Motion for Court Appointed Expert and denying Plaintiff's Motion to Amend in part. (ECF No. 97.) Judge Cooke granted leave to amend to add Karen Gedney as a named defendant but denied leave to amend to assert an ADA claim. (Id.)

         III. LEGAL STANDARD

         Magistrate judges are authorized to resolve pretrial matters subject to district court review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); LR IB 3-1(a) (“A district judge may reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case pursuant to LR IB 1-3, where it has been shown that the magistrate judge's ruling is clearly erroneous or contrary to law.”). “This subsection would also enable the court to delegate some of the more administrative functions to a magistrate judge, such as . . . assistance in the preparation of plans to achieve prompt disposition of cases in the court.” Gomez v. United States, 490 U.S. 858, 869 (1989). “A finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Ressam, 593 F.3d 1095, 1118 (9th Cir. 2010) (quotation omitted). A magistrate judge's pretrial order issued under 28 U.S.C. § 636(b)(1)(A) is not subject to de novo review, and the reviewing court “may not simply substitute its judgment for that of the deciding court.” Grimes v. City & Cty. of S.F., 951 F.2d 236, 241 (9th Cir. 1991).

         IV. ECF NO. 100

         A. Plaintiff's Motion for Court Appointed Expert (ECF No. 59)

         Plaintiff has not demonstrated how Judge Cooke's decision to deny his request to appoint an expert is clearly erroneous or contrary to law. In fact, there is no legal mechanism for the Court to appoint an expert for Plaintiff. Plaintiff's in forma pauperis status does not extend to cover professional fees of an expert. See LSR 1-7 (“The granting of an application to proceed in forma pauperis does not relieve the applicant of the responsibility to pay the expenses of litigation that are not covered by 28 U.S.C. § 1915.”)

         Plaintiff argues that Judge Cooke made a clear error when she failed to consider the complexity of the deliberate indifference to medical needs claim in Count I. Plaintiff cites to Griffin v. Aranas, et al., No. 3:16-cv-00309-MMD-VPC, as an example of the complexity of cases raising Hepatitis C issues. (ECF No. 100 at 6.) However, Griffin is distinguishable because the Court did not appoint an expert for plaintiff in that case.

         B. Motion to ...


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