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Augborne v. Doctor

United States District Court, D. Nevada

November 20, 2019

DOCTOR, et al., Defendants.

          ORDER RE: ECF NO. 44


         Before the court is Plaintiff's “Motion” (ECF No. 44)[1] 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.

         I. BACKGROUND

         On 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.[2] (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.)

         The 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.)[3] 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.)

         Plaintiff 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.)

         On 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 ...

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