United States District Court, D. Nevada
BRIT F. AUGBORNE, III, Plaintiff,
DOCTOR, et al., Defendants.
ORDER RE: ECF NO. 44
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
the court is Plaintiff's “Motion” (ECF No.
to amend the court's scheduling order (ECF No. 31). The
court's original scheduling order was revised at
Plaintiff's request at this court's status conference
on October 25, 2019 (ECF No. 40), extending the discovery
deadline to December 20, 2019. Plaintiff's instant motion
to amend the scheduling order is denied for the reasons set
forth in this order.
November 7, 2018, Senior District Judge Robert C. Jones
screened Plaintiff's complaint. Judge Jones described the
gravamen of Plaintiff's action as follows:
In the First Amended Complaint (FAC), Plaintiff sues multiple
defendants for events that took place while he was
incarcerated by the NDOC. (ECF No. 11 at 8). The FAC alleges
twenty counts and seeks declaratory relief, injunctive
relief, and monetary damages. (Id. at 26, 29-32).
Plaintiff sues Dr. Martin, Officer Alverado, Officer
Benavedez, T. Stark, and the NDOC. (Id. at 2-7).
The FAC alleges the following: On or about March or May 2016,
Plaintiff developed pain and boils on his stomach and
backside, which he later learned were caused by the shingles
virus. (Id. at 8). Plaintiff notified officers
Romero and Benevedez. (Id.) They observed
Plaintiff's condition and called medical staff, who also
observed his condition. (Id.) It was obvious that he
had serious health issues. (Id.) Medical staff told
him to fill out a kite even though his issues were clearly
serious. (Id.) Plaintiff spent weeks in pain.
(Id.) Officers made calls to the medical staff
because they were trying to figure out what they might be
exposed to when handling Plaintiff. (Id. at 9). Two
days after Plaintiff was placed on the emergency doctor list,
but before he saw a doctor, Plaintiff was found unresponsive
in his cell and was taken to Valley Hospital. (Id.)
Doctors at Valley Hospital told Plaintiff that, due to the
delay, the virus had entered Plaintiff's spine.
(Id.) When Plaintiff was released from Valley
Hospital, he was prescribed Neurontin/Gabapentin for nerve
pain and seizures. (Id.) Plaintiff continued on this
medication for over a year. (Id.)
Plaintiff subsequently was transferred from High Desert State
Prison (HDSP) to Ely State Prison (ESP). (Id. at
10). Shortly thereafter, his “prescribed treatment was
discontinued without cause.” (Id.) Plaintiff
grieved the issue with no benefit. (Id.) He suffered
day after day and had another shingles outbreak.
(Id.) Plaintiff was told by nurses and Dr. Martin
that neither the State of Nevada nor the NDOC were authorized
by the F.D.A. to issue the prescribed medications he was
prescribed by the doctors at Valley Hospital. (Id.)
Plaintiff alleges twenty counts related to these events.
(ECF No. 12 at 3-5; footnote 4 omitted.)
majority of Plaintiff's 20 counts were dismissed, albeit
without prejudice and with leave to amend. However, as
pertinent to this order, Judge Jones allowed Count 8,
alleging an Eighth Amendment claim for deliberate
indifference to serious medical needs to proceed against
“John Doe doctor at HDSP (High Desert State Prison)
when Plaintiff learns that person's name.” (ECF No.
12 at 26, ll. 4-19; ECF No. 12 at 24.) Judge Jones also
allowed a deliberate indifference to serious medical needs
claim to proceed against Dr. Martin as alleged in Count 14.
(Id. at 25.)
chose not to further amend his complaint and the action was
directed to proceed on Count 8 as against Defendant John Doe
doctor and on Count 14 against Dr. Martin (ECF No. 24.) Dr.
Martin answered Plaintiff's amended complaint as to Count
14 on July 22, 2019. (ECF No. 30.) The court thereafter
entered a scheduling order (ECF No. 31) directing discovery
to be completed by October 21, 2019. Pursuant to an oral
motion of Plaintiff, on October 25, 2019, the court extended
the discovery deadline up to and including December 20, 2019.
(ECF No. 40 at 3.)
September 16, 2019, apparently with respect to Count 8
against “John Doe doctor, ” Plaintiff filed a
document alleging that:
“the unknown name doctor has been ascertained through
discovery. Plaintiff has in accordance with this court's
order submitted and served upon the court the second amended
complaint complying with the court that said defendant be
named and served in this case. The second amended complaint