United States District Court, D. Nevada
DONALD E. MITCHELL, JR., Plaintiff,
STATE OF NEVADA, et al., Defendants.
HOFFMAN, UNITED STATES DISTRICT JUDGE.
before the court is plaintiff's motion for service and
re-issuance of summons (ECF No. 40), filed on April 12, 2019.
before the court is plaintiff's emergency judicial notice
requesting extension of time (ECF No. 41), filed on April 12,
2019. Defendants Carrie Alvarado, Timothy Filson, Jerry
Howell, Bianca Knight-Groover, Perry Russell, and Dwight
Neven filed a response (ECF No. 43) on April 24, 2019.
Plaintiff filed a reply (ECF No. 45) on May 6, 2019.
a civil rights action under 42 U.S.C. § 1983 by a
prisoner of the Nevada Department of Corrections (NDOC)
against the State of Nevada and multiple NDOC employees.
(Compl. (ECF No. 4).) On March 8, 2019, the court entered an
order reopening discovery for 30 days for the limited purpose
of resolving issues related to defendants' discovery
responses. (Order (ECF No. 35).) The court also extended the
Federal Rule of Civil Procedure 4(m) deadline, providing
plaintiff with an additional 30 days to serve defendant
Anthony Warren. (Id.) On April 10, 2019, the court
dismissed defendant Warren from this action, as plaintiff
failed to file proof of service by the deadline. (Order (ECF
No. 37).) Plaintiff then filed a motion for relief requesting
that the court reconsider its dismissal of defendant Warren
from this action. (Mot. for Relief (ECF No. 42).)
now moves for service and the issuance of summons to
defendant Warren. (Mot. for Service (ECF No. 40).) Plaintiff
argues that he complied with the court's orders, but that
defendant is “running from the Angel of Justice.”
also moves to extend the close of discovery, arguing that
good cause for the extension exists because he was placed
into solitary confinement and was unable to visit the prison
library or reach out to defendants' counsel to resolve
the discovery dispute. (Mot. to Extend (ECF No. 41).)
Defendants respond conceding that an incident occurred on
March 23, 2019, leading to the discipline of plaintiff.
(Resp. (ECF No. 43).) Defendants further argue that plaintiff
was assigned to administrative segregation pending the
adjudication of the disciplinary charge and that plaintiff
retained access to legal materials, phone, mail, and inmate
store privileges. (Id.) Plaintiff replies that
defendants are attempting to prejudice plaintiff by relying
on his disciplinary history and that the court should now
consider grievances filed against defendants Alvarado and
Knight by other inmates. (Reply (ECF No. 45).)
MOTION FOR SERVICE
that Warren is no longer a party to this action, the motion
for service is denied without prejudice. Plaintiff may refile
the motion if the court resolves the pending motion for
relief in his favor.
MOTION TO EXTEND
Rule 6(b) of the Federal Rules of Civil Procedure, the court
may, for good cause, extend a deadline “if a request is
made before the original time or its extension
expires.” Fed.R.Civ.P. 6(b)(1)(A). The Ninth Circuit
has equated good cause with the exercise of due diligence.
See Johnson v. Mammoth Recreations, Inc., 975 F.2d
604, 509 (9th Cir. 1992). Under Local Rule 26-4,
A motion or stipulation to extend any date set by the
discovery plan, scheduling order, or other order must, in
addition to satisfying the requirements of LR IA 6-1, be
supported by a showing of good cause for the extension. A
motion or stipulation to extend a deadline set forth in a
discovery plan must be received by the court no later than 21
days before the expiration of the subject deadline. A request
made within 21 days of the subject deadline must be supported
by a showing of good cause. A request made after the
expiration of the subject deadline will not be granted unless
the movant also demonstrates that the failure to act was the
result of excusable neglect.
reviewed the motion, the court finds that plaintiff has
failed to demonstrate good cause or excusable neglect.
Plaintiff submitted this motion after the discovery deadline
expired on April 7, 2019. Plaintiff argues that he was unable
to access the prison library, nor could he contact
defendants' counsel to resolve any discovery issues.
However, defendants demonstrate that plaintiff retained
access to legal materials, phone, mail, and the inmate store
while placed in administrative segregation. Given that
plaintiff was in a position to contact defendants'
counsel and conduct discovery during his time in