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Tipton v. Guice

United States District Court, D. Nevada

December 11, 2019

DUANE TIPTON, Plaintiff,
GUICE, et al., Defendants.

          AARON D. FORD Attorney General ROST C. OLSEN, Bar No. 14410 Deputy Attorney General State of Nevada Attorneys for Defendant Morris Guice


         Defendant Morris Guice, by and through counsel, Aaron D. Ford, Attorney General of the State of Nevada, and Rost C. Olsen, Deputy Attorney General, files his Motion for Relief from Admissions and Extension of Time to Respond to Discovery. This Motion is supported by the following Memorandum of Points and Authorities, as well as all pleadings and papers on file in this matter.



         This is a prisoner civil rights action filed under 42 U.S.C. § 1983, brought by Duane Tipton #69967 (Plaintiff), against multiple Defendants for alleged events that took place while he was incarcerated by Nevada Department of Corrections (NDOC) and housed at High Desert State Prison (HDSP) in 2017. (ECF No. 6 at 1.) Pursuant to the Court's Screening Order (ECF No. 5) on Plaintiffs Complaint (ECF No. 6) Plaintiff was allowed to /// proceed on one Eighth Amendment violation for failure to protect against Correctional Officer Morris Guice.

         On October 2, 2019, the Attorney General's Office received Plaintiffs First Request for Documents, First Set of Interrogatories to Defendants, and Request for Admissions. At that time, Defendant Guice was absent from work on leave "for the majority of October and November." Ex. A.

         Defendant was able to respond to the Request for Documents through Counsel on October 30, 2019. However, upon his return to work, Defendant Guice changed duty stations; furthermore, this matter was recently reassigned to its third Deputy Attorney General (DAG) within the last four months due to a higher-than-usual amount of personnel turnover within the Attorney General's Office. The confluence of these events has led to difficulty in undersigned counsel's office maintaining contact with Defendant Guice to procure his responses to the propounded discovery.

         On November 15, 2019, Charles Odgers, the DAG previously assigned to this matter, received a letter from Plaintiff dated November 13, 2019 detailing his concerns as to Defendant's lack of response to his Interrogatories and Request for Admissions; Plaintiff then set an arbitrary deadline of November 18, 2019, five days after the date of the letter, to respond. Ex. B. On November 26, 2019, DAG Odgers mailed a letter to Plaintiff explaining Defendant's prolonged absence from work and the Attorney General's Office's inability to reach Defendant. Ex. A. DAG Odgers then requested a continuance until December 15, 2019 to file responses to the Interrogatories and Request for Admissions. Id. DAG Odgers also requested Plaintiff inform the Attorney General's Office if the proposed continuance was not agreeable so that the Office could file a motion to extend response time. Id.

         However, also on November 26, 2019, Plaintiff filed his Motion to Compel Answers to Interrogatories and Admissions, without receiving or responding to the letter sent by DAG Odgers. ECF No. 47.

         II. ARGUMENT

         Under Federal Rule of Civil Procedure 36, matters are deemed admitted if the responding party fails to serve a response within 30 days[1] of service of the requests for admissions. See Fed.R.Civ.P. 36(a). Whether a responding party can withdraw or amend the admitted matters is within the discretion of the Court. See Cordon v. United States, 474 F.3d 616, 621 (9th Cir. 2007) (internal citations omitted). A two-prong test is employed in deciding whether to allow relief from admissions: (1) whether upholding the admissions would practically eliminate any presentation of the merits of the case, and (2) whether the party relying on the deemed admissions has shown prejudice. See Id. at 622. However, the Court may also consider whether the party moving for relief from admissions has demonstrated good cause for the delay. See Friedman v. Live Nation Merchandise, Inc., 833 F.3d 1180, 1185 (9th Cir. 2016) (citing Conlon, 474 F.3d at 625).

         Here, Defendant was out of work on leave for the majority of the time period in which he had to respond; this led to a breakdown in communication that precluded the Attorney General's Office from being able to reach him. See Ex. A. Furthermore, due to personnel changes in the office, this matter has been recently reassigned to the undersigned DAG, who is the third DAG handling this matter in the last four months. The totality of these events give rise to good cause for Defendant's delay in response to the outstanding discovery requests. See Friedman, 833 F.3d at 1185.

         Accordingly, based upon the foregoing, Defendant moves this Court to grant him:

         1. Relief from default admissions to the Request for Admissions ...

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