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Vontress v. State

United States District Court, D. Nevada

April 22, 2019

GEORGE L. VONTRESS, Plaintiff,
v.
THE STATE OF NEVADA, et al., Defendants.

          ORDER (MOTS. COMPEL - ECF NOS. 52, 53, 57)

          PEGGY A. LEEN UNITED STATES MAGISTRATE JUDGE

         This matter is before the court on Plaintiff George L. Vontress' Motions to Compel Discovery (ECF Nos. 52, 53, 57). 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. The court has considered the Motions, the Response (ECF No. 59) filed by Defendants Frank Dreesen, James Dzurenda, Dwight Neven, and Vontress' Reply (ECF No. 63).

         BACKGROUND

         Mr. Vontress is a pro se prisoner in the custody of the Nevada Department of Corrections (“NDOC”) and currently housed at the Saguaro Correctional Center in Eloy, Arizona. He has received permission to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of Practice. He commenced this action on in September 2018 by filing an IFP Application (ECF No. 1) and proposed complaint.[1] This case arises from Vontress' allegations, pursuant to 42 U.S.C. § 1983, regarding his treatment while he was incarcerated at the High Desert State Prison and Saguaro Correctional Center.

         The court reviewed the Complaint (ECF No. 35) and determined that it states 12 plausible claims for: (1) due process violations against Defendant Lt. John Doe (portion of Count I); (2) deliberate indifference to serious medical needs against Defendant Lt. John Doe (Count II); (3) supervisory liability for administrative segregation due process against Defendant Nevens (portion of Count III); (4) deliberate indifference to serious medical needs against Defendant John Doe medical provider (Count IV); (5) conspiracy against Defendants Lt. John Doe and John Doe medical provider (Count V); (6) deliberate indifference to serious medical needs against Defendant Dr. Pena (Count VII); (7) deliberate indifference to serious medical needs against Defendant Gentry (Count VIII); (8) conspiracy against Defendants Gentry and Dr. Pena (portion of Count VIII); (9) retaliation and conspiracy against Defendants Gentry and Dreeson (portion of Count IX); (10) deliberate indifference to serious medical needs and conspiracy against Defendants Henninger, [2] CoreCivic, and Dzurenda (Count XI); (11) deliberate indifference to serious medical needs against Defendants Fuller, Williams, and Doe SCC medical staff (Count XII); and (12) deliberate indifference to serious medical needs against Defendants Fuller, Thomas, and Marr (Count XIII).[3] See Screening Order (ECF No. 34).

         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 Setting Inmate Early Mediation Conference (ECF No. 40). However, the parties did not reach a settlement and the case was returned to the normal litigation track. See Feb. 15, 2019 Mins. of Proceedings (ECF No. 47).

         The court entered an Order (ECF No. 50) (“Service Order”) instructing Mr. Vontress to perfect service within 90 days, which set a service deadline of May 24, 2019. In addition, the court directed electronic service of the Complaint on the Nevada Office of the Attorney General (“Attorney General”) and instructed that a notice be filed with the court indicating the names of the defendants for whom the Attorney General accepts service, and those it does not. Id. With regard to Defendants Hininger, Thomas, Marr, Fuller, Williams, and CoreCivic, the court instructed that summonses be issued and ordered the U.S. Marshal to attempt service of process. Id.; Summonses (ECF No. 51).

         The Attorney General accepted service on behalf of Defendants Frank Dreesen, James Dzurenda, Dwight Neven, and Dr. Rene Pena (collectively, “NDOC Defendants”) on March 15, 2019. Notice Acceptance of Service (ECF No. 60). However, the Attorney General did not accept service for Defendant Jo Gentry, but filed his last known address under seal as ordered. See Notice of Sealed Submission (ECF No. 62); Sealed Submission of Last Known Address (ECF No. 61).

         The NDOC Defendants' answers or responsive pleadings are due May 15, 2019. See Order (ECF No. 50) at 4. Because no answers have been filed and many defendants remain unserved, [4]no discovery plan and scheduling order has been entered.

         DISCUSSION

         Mr. Vontress has filed three motions (ECF Nos. 52, 53, 57) requesting court orders compelling various defendants to produce discovery materials. The motions seek records such as incident reports, disciplinary reports, emails, faxes, his medical records, and records of previous litigation involving NDOC and CoreCivic. Vontress asserts this discovery is necessary for him to successfully name and serve the unnamed defendants and prosecute his case. The motions were filed between February 28 and March 8, 2019. At the time, no named defendant was served, no answer was filed, and a discovery plan and scheduling order was not entered.

         The NDOC Defendants filed a Response (ECF No. 59) to one motion, arguing that Mr. Vontress' discovery requests are premature and improper as defendants had yet to file a notice of acceptance of service or their answer and the court has not “issued a scheduling order signaling commencement of discovery.” Id. at 2. Vontress' Reply (ECF No. 63) states that he realizes notice of acceptance of service has not been filed and that is “exactly Plaintiff's point.” Id. at 2. He wants to name and serve all defendants so that a notice of acceptance of service can be made on behalf of all the defendants, and he needs the requested discovery to do so. With regard to the NDOC Defendants argument that a motion to compel is not the proper vehicle for him to submit discovery requests, he responds that “any vehicle Plaintiff decides to utilize, in order to get from point A to point B, and for which this noble court is willing to construe. is adequate.” Id. Thus, he asks the court to compel the requested discovery.

         Pursuant to the Federal Rules of Civil Procedure and Local Rules of Civil Practice of this district, filing a motion with the court is not the proper procedure for requesting written discovery materials from a party.[5] Once the court enters a scheduling order, the parties are permitted to engage in discovery. See Fed. R. Civ. P. 16. In prisoner civil rights actions, the court will enter a scheduling order within 30 days after any defendant files an answer. LR 16-1(b). All discovery requests must be served directly on opposing parties, who then have 30 days to respond. Fed.R.Civ.P. 34. The Local Rules also state:

Unless the court orders otherwise, written discovery, including discovery requests, discovery responses, deposition notices, and deposition transcripts, must not be filed with the court. Originals of responses to written discovery requests must be served on the party who served the discovery request, and that party must make the originals ...

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