United States District Court, D. Nevada
WEKSLER UNITED STATES MAGISTRATE JUDGE.
matter is before the court on plaintiff Jason Altheide's
Motion for Leave to File Fifth Amended Complaint (ECF No.
33), Motion to Substitute or Add Defendants (ECF No. 36), and
Motion to Exclude from Mediation (ECF No. 37). These motions
are referred to the undersigned pursuant to 28 U.S.C. §
636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.
Altheide is a pro se prisoner in the custody of the Nevada
Department of Corrections (“NDOC”) at Ely State
Prison. Altheide has also received permission to proceed
in forma pauperis (“IFP”) pursuant to 28
U.S.C. § 1915 and LSR 1-1 of the Local Rules of
Practice. This case involves Mr. Altheide's allegations
of civil rights violations pursuant to 42 U.S.C. § 1983.
The court has reviewed the Fourth Amended Complaint (ECF No.
12) and, on December 7, 2018, found that it states three
plausible claims against defendants Brian Williams, James
Dzurenda, Alexis Lazano: (1) disciplinary segregation due
process, (2) administrative segregation due process, and (3)
cruel and unusual punishment. (Dec. 7, 2018 Screening Order
(ECF No. 21).)
Proposed fifth amended complaint
Altheide moved for leave to file a fifth amended complaint on
May 8, 2019, approximately one week after the deadline for
doing so. (ECF No. 33.) Defendants stipulate to the
filing of the Amended Complaint. (Id. at 2.) Given
the Plaintiff is incarcerated and the mail can be delayed,
and considering the stipulation, the court excuses the late
filing. Mr. Altheide is reminded that failure to comply with
deadlines in the future may result in the court not
considering his motions.
motion for leave to file a fifth amended complaint is
responsive to this court's February 28, 2019 order
explaining to Mr. Altheide that if he
wishes to substitute and add “John Doe Caseworker and
John Doe Caseworker Supervisor” for defendant Lorenza,
he may file a motion seeking leave of the court to file a
fifth amended complaint pursuant to Rule 15, subject to the
deadlines imposed in the scheduling order.
(ECF No. 26 at 3.) A comparison of the fourth amended
complaint (ECF No. 12), which is currently the operative
complaint in this case, and the proposed fifth amended
complaint (ECF No. 33-1) reveals a few differences. The
proposed fifth amended complaint adds “John Doe
I” and “John Doe II, ” and it also adds
“Count I” which was missing from the fourth
amended complaint. In addition, the claim for relief in the
fifth amended complaint is lowered from one million dollars
to one hundred thousand dollars. (Id.)
this court screened the fourth amended complaint, it did not
screen Count I as it was not in the pleading. The sum and
substance of Count I is that defendant Williams (High Desert
State Prison Warden) is responsible, under a respondeat
superior theory of liability, for John Doe I's and John
Doe II's failure to hold a hearing prior to placing Mr.
Altheide in administrative segregation. (ECF No. 33-1 at 4.)
This court already found Mr. Altheide stated a plausible due
process violation claim based on his placement in
administrative segregation against defendants Lazano,
Dzurenda, and Williams. (ECF No. 21 at 6-7.) As a result, the
substance of Count I is duplicative. However, the court will
include John Doe I and John Doe II as defendants to the claim
alleging a due process violation based on his placement in
administrative segregation. Given that Count I in the
proposed fifth amended complaint does not include defendant
Lorenza, coupled with Mr. Altheide's request to
substitute John Doe I and John Doe II for defendant Lorenza
(ECF No. 24), this court orders that defendant Lorenza be
dismissed as a defendant as to the claim for violation of due
process based on administrative segregation.
the court will grant in part and deny in part Mr.
Altheide's Motion for Leave to File Fifth Amended
Complaint. The motion is granted to the extent the court will
substitute John Doe I and John Doe II to the administrative
segregation due process claim. The motion is denied in all
other respects, and the fourth amended complaint shall remain
the operative complaint, except that John Doe I and John Doe
II are added as defendants to the administrative segregation
due process claim.
Motion to Substitute or Add Defendants
he requested the court's permission to file a fifth
amended complaint, Mr. Altheide filed a motion to Substitute
a Party. (ECF No. 36). Specifically, he requests to
substitute Erik Elmore for John Doe I. Apparently, Mr.
Altheide learned John Doe I's identity while the Motion
for Leave to File a Fifth Amended Complaint was pending.
Defendants did not oppose the motion, which constitutes a
consent to the granting of the motion under Local Rule
7-2(d). The court will allow Mr. Altheide to substitute Erik
Elmore for John Doe I. Accordingly, the court will grant Mr.
Altheide's Motion to Substitute or Add Defendants.
Motion to ...