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Rhymes v. Rowley

United States District Court, D. Nevada

October 22, 2019

MICHAEL RHYMES, Plaintiff,
v.
C. ROWLEY, et al., Defendants.

          MICHAEL RHYMES, Plaintiff Pro Se.

          AARON D. FORD Attorney General.

          DENNIS W. HOUGH, Deputy Attorney General Attorneys for Defendants.

          JOINT PRE-TRIAL ORDER

          Robert C. Jones United States District Judge.

         Following pretrial proceedings in this case, IT IS ORDERED:

         I. NATURE OF ACTION AND CONTENTIONS OF THE PARTIES

         A. NATURE OF ACTION AND IDENTIFICATION OF PARTIES

         This is an inmate civil rights action brought by Michael Rhymes, (Rhymes) pursuant to 42 U.S.C. § 1983. Rhymes is a prisoner in the custody of the Nevada Department of Corrections (NDOC), currently housed at Lovelock Correctional Center (LCC). Rhymes is serving a life sentence with possibility for parole for lewdness with a minor.

         Rhymes submitted his First Amended civil rights complaint on May 5, 2016, alleging, among other things, that: Defendants Sablica and Nevin were deliberately indifferent to Rhymes' serious medical condition by failing to provide a prescribed medication for Rhymes' type 2 diabetes.

         5. On January 26, 2014, Rhymes signed for Glipizide, Metformin, Hydrochlorothiazide, and Lisinopril.

         6. On March 5, 2014 Rhymes requested refills on Glipizide, Metformin, Hydrochlorothiazide, and Lisinopril.

         7. On March 13, 2014 Rhymes was prescribed Metformin.

         8. On March 15, 2014 Rhymes signed receipt of Glipizide, Metformin, Hydrochlorothiazide, and Lisinopril.

         9. On March 22, 2014 Rhymes requested refills for Glipizide, Metformin, Hydrochlorothiazide, and Lisinopril.

         10. On March 23, 2014 Rhymes signed a receipt for Metformin

         11. On a date uncertain Rhymes signed a receipt for Glipizide, Metformin, Hydrochlorothiazide, and Lisinopril.

         12. On May 2, 2014, Rhymes signed for receipt of Metformin and Lisinopril.

         13. On May 20, 2014 Rhymes submitted a kite noting he did not receive Glipizide or Hydrochlorothiazide.

         14. On May 23, 2014 Rhymes signed a receipt for Metformin and Lisinopril.

         15. On May 27, 2014 Rhymes' prescriptions for Glipizide, and Hydrochlorothiazide were renewed.

         16. On May 29, 2014 at 6:00 a.m. Rhymes filed an informal grievance # 2006-29-79783 alleging he did not receive Glipizide or Hydrochlorothiazide.

         17. On May 29, 2014 Rhymes signed a receipt for Glipizide and Hydrochlorothiazide.

         18. On June 27, 2014 Rhymes requested refills of Glipizide, Metformin, Hydrochlorothiazide, and Lisinopril.

         19. On June 28, 2014 Rhymes signed a receipt for Glipizide, Metformin, Hydrochlorothiazide and Lisinopril.

         20. On July 28, 2014 Rhymes requested refills of Glipizide, Metformin, Hydrochlorothiazide and Lisinopril.

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         JUDGMENT IN A CIVIL CASE

         __ Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

         __ Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

         X Decision by Court. This action came for consideration before the Court. The issues have been considered and a decision has been rendered.

         IT IS ORDERED AND ADJUDGED that the first amended complaint is dismissed with prejudice for failure to state a claim.

         IT IS FURTHER ORDERED AND ADJUDGED that an appeal would be taken in good faith.

         IT IS FURTHER ORDERED AND ADJUDGED that judgment is hereby entered and this case is closed.

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         JUDGMENT IN A CIVIL CASE

         __ Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

         __ Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

         X Decision by Court. This action came for consideration before the Court. The issues have been considered and a decision has been rendered.

         IT IS ORDERED AND ADJUDGED that the Magistrate Judge's Report and Recommendation (ECF No. 89) entered on January 28, 2019, is ADOPTED and ACCEPTED.

         IT IS FURTHER ORDERED AND ADJUDGED that Defendants' Motion for Summary Judgment (ECF No. 67) is GRANTED IN PART AND DENIED IN PART.

         IT IS FURTHER ORDERED AND ADJUDGED D that the deliberate indifference claims against Defendants, Neven and Sablica, of the Second Amended Complaint be allowed to PROCEED.

         IT IS FURTHER ORDERED AND ADJUDGED that the supervisory liability claim regarding the enforcement of NDOC regulations against Defendant Neven, of the Second Amended Complaint be DISMISSED.

         IT IS FURTHER ORDERED AND ADJUDGED that the official capacity claims against Defendants Neven and Sablica, of the Second Amended Complaint are DISMISSED.

         IT IS FURTHER ORDERED AND ADJUDGED that qualified immunity is DENIED

         ORDER

         Before the Court is the Report and Recommendation of United States Magistrate Judge Caria B. Carry (ECF No. 89[1]) entered on January 28, 2019, recommending that the Court grant and deny in part Defendants' Motion for Summary Judgment (ECF No. 67). No objection to the Report and Recommendation has been filled.

         This action was referred to Magistrate Judge Carry under 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 1-4 of the Rules of Practice of the United States District Court for the District of Nevada.

         The Court has considered the pleadings and memoranda of the parties and other relevant matters of record pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 3-2. The Court determines that the Magistrate Judge's Report and Recommendation (ECF No. 89) entered on January 28, 2019, should be adopted and accepted.

         MINUTES OF THE COURT

          PRESENT: THE HONORABLE CARLA BALDWIN CARRY . U.S. MAGISTRATE JUDGE.

         MINUTE ORDER IN CHAMBERS:

         This Is a civil rights action brought by pro se prisoner plaintiff Michael Rhymes. Plaintiff has moved for appointment of counsel (ECF No. 94). Defendants' opposed the motion (ECF No. 95). No reply was filed.

         A litigant In a civil rights action does not have a Sixth Amendment right to appointed counsel. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). The Supreme Court has ruled that district courts lack authority to require counsel to represent Indigent prisoners In § 1983 cases. Ma/lard v. U.S. Dist. Court for the S. Dist of Iowa, 490 U.S. 296 (1989). in only "exceptional circumstances," the court may request voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Without a reasonable method of securing and compensating counsel, this court will seek volunteer counsel only In the most serious and exceptional cases. A finding of such exceptional circumstances requires that the court evaluate both the likelihood of success on the merits and the pro se litigant's ability to articulate his claims In light of the complexity of the legal Issues Involved. Neither factor is controlling; both must be viewed together In making the finding. Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). The court exercises discretion In making this finding. Id. (citing Palmer, 560 F.3d at 970).

         In the present case, the court does not find the required exceptional circumstances. Even If it is assumed that plaintiff Is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

         B. STIPULATED EXHIBITS AS TO AUTHENTICITY BUT NOT ADMISSIBILITY

         1. None.

         C. PLAINTIFF'S EXHIBITS SUBJECT TO OBJECTIONS

         1.

...


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