Opinion
Case No. 3:12-cv-00263-ECR-VPC
07-01-2013
BILLY CEPERO, Plaintiff, v. HIGHT DESERT STATE PRISON, et al Defendants.
CATHERINE CORTEZ MASTO Attorney General STEPHEN D. QUINN Senior Deputy Attorney General Bureau of Litigation Attorneys for Defendants Dwight W. Neven, Isidro Baca, Romeo Aranas, MD, Jessica Gerke fka Jessica Fowler, Gary Graham, Cole Morrow, Jerry Howell, Howard Wickham Genesa Garcia, Roland Daniels, Ronald Oliver, Christopher Vasquez, Bryan Sheilds, Francis Kim, Beebe Clark, Jacob Murphy, Linda Adams, and Jerimiah Melton
CATHERINE CORTEZ MASTO
Attorney General
STEPHEN D. QUINN
Senior Deputy Attorney General
Nevada Bar No. 5746
Bureau of Litigation
5420 Kietzke Lane, Suite 202
Reno, NV 89511
Tel: 775-850-4115
Fax: 775-688-1822
squinn(a)ag.nv.qov
Attorneys for Dwight W. Neven,
Isidro Baca, Romeo Aranas, MD,
Jessica Gerke fka Jessica Fowler,
Gary Graham, Cole Morrow,
Jerry Howell, Howard Wickham
Genesa Garcia, Roland Daniels,
Ronald Oliver, Christopher Vasquez,
Bryan Sheilds, Francis Kim,
Beebe Clark, Jacob Murphy,
Linda Adams, and Jerimiah Melton
MOTION FOR EXTENSION OF TIME TO
PLEAD OR OTHERWISE RESPOND TO
PLAINTIFF'S SECOND AMENDED
COMPLAINT
Defendants Dwight W. Neven, Isidro Baca, Romeo Aranas, MD, Jessica Gerke fka Jessica Fowler, Gary Graham, Cole Morrow, Jerry Howell, Howard Wickham, Genesa Garcia, Roland Daniels, Ronald Oliver, Christopher Vasquez, Bryan Sheilds, Francis Kim, Beebe Clark, Jacob Murphy, Linda Adams, and Jerimiah Melton, by and through undersigned counsel, respectfully move this Court for an extension of time from July 8, 2013, of sixty (60) days to and until September 6, 2013, within which newly named defendants for whom the Attorney General accepted service to plead or otherwise respond to Plaintiff's Second Amended Complaint (# 27). This motion is made pursuant to Rule 6(b) of the Federal Rules of Civil Procedure on the grounds that good cause exists for the requested enlargement. This motion is based upon the following points and authorities.
PROCEDURAL HISTORY
This is civil rights action brought pro se pursuant to 42 U.S.C. § 1983 by an indigent prisoner in forma pauperis who is currently located at Lovelock Correctional Center, but based upon events that occurred at High Desert State Prison ("HDSP"). In September 2012, the Court allowed Plaintiff to proceed only on two claims asserted in his July 2012 amended complaint, filed as Docket Number 8, which claims are: (1) against HDSP corrections staff and administrators Gerke (fka Fowler), Neven, Baca, and Morrow on a failure to protect claim based upon allegations that they housed Plaintiff, or allowed Plaintiff to be housed, with other prisoners who previously threatened him, and who thereafter attacked and injured Plaintiff (Doc. #11- Screening Order at 7:22-24); and (2) against HDSP medical staff Graham and Aranas on a medical deliberate indifference claim in connection with taking a back brace away from Plaintiff and disregarding orders for physical therapy (id. at 8:1-3).
After issuance of an order (Doc. # 20) allowing this case to proceed, on January 16, 2013 Plaintiff filed a motion to amend. Doc. # 24 - Motion to Amend. On February 8, 2013, the Court granted Plaintiff's motion. Doc. # 26 - Order Granting Leave to Amend. On March 13, 2012, Plaintiff filed a second amended complaint. Doc. #28-Second Amended Complaint. On March 19, 2013, Defendants Dwight W. Neven, Isidro Baca, Romeo Aranas, MD, Jessica Gerke fka Jessica Fowler, and Gary Graham, filed an answer to Plaintiff's second amended complaint, which asserted two affirmative defenses: (1) failure to state a claim; and (2) failure to exhaust administrative remedies. Doc. # 28 - Answer to Second Amended Complaint at 3.
On June 4, 2013 the Court ordered the Attorney General to file an acceptance of service regarding the newly named defendants in Plaintiff's Second Amended Complaint no later than June 24, 2013. Doc. # 44. On June 24, 2013 the Attorney General complied with said order, notifying the Court of acceptance of service on behalf of thirteen (13) additional newly named defendants.
DEFENANTS' MOTION
Defendants calculate that the response of the defendants for whom the Attorney General accepted service to Plaintiff's Second Amended Complaint is due July 8, 2013. Defendants are requesting a sixty (60) day extension of time on behalf of the thirteen (13) defendants newly named for whom the Attorney General accepted service to plead or otherwise respond to Plaintiff's Second Amended Complaint from July 8, 2013 to and including September 6, 2013 within which to plead or otherwise respond. In support of this motion Defendants show the following good cause: (1) counsel needs to notify each defendant that he must meet the statutory requirement of requesting Attorney General representation in writing or chose to hire private counsel; and (2) as to each who requests representation, counsel needs to determine that defendant's knowledge concerning the facts and circumstances that are the basis of Plaintiff's claims in order to formulate a response to the Second Amended Complaint.
Upon a showing of good cause, requests for extensions of time for a requesting party to act that are requested before the time for the required act has expired are allowed pursuant to the Court's exercise of its discretion. Fed. R. Civ. Pro. 6(b)(1); see Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654 F.3d 958, 966 9th Cir. 2011). On June 24, 2013, pursuant to Court order (#44), counsel notified the Court (# 47) that the Attorney General accepts service of process of Plaintiff's Second Amended Complaint (#27) on behalf of thirteen (13) newly named party-defendants. On July 1, 2013 counsel sent out notices to each said defendant regarding the need for written request for representation from each, and what information each has as to the events and circumstances that are the basis of the claims asserted in Plaintiff's Second Amended Complaint. Good cause exists to grant the requested extension.
CONCLUSION
Based on the foregoing, Defendants respectfully request that an extension of time be granted within which newly named defendants for whom the Attorney General accepted service to plead or otherwise respond to Plaintiff's Second Amended Complaint to and including September 6, 2013.
CATHERINE CORTEZ MASTO
Attorney General
By ___________
STEPHEN D. QUINN
Senior Deputy Attorney General
Bureau of Litigation
Attorneys for Defendants
Dwight W. Neven,
Isidro Baca, Romeo Aranas, MD,
Jessica Gerke fka Jessica Fowler,
Gary Graham, Cole Morrow,
Jerry Howell, Howard Wickham
Genesa Garcia, Roland Daniels,
Ronald Oliver, Christopher Vasquez,
Bryan Sheilds, Francis Kim,
Beebe Clark, Jacob Murphy,
Linda Adams, and Jerimiah Melton
CERTIFICATE OF SERVICE
I hereby certify that on July 1, 2013, I electronically filed the foregoing MOTION FOR EXTENSION OF TIME TO PLEAD OR OTHEWISE RESPOND TO SECOND AMENDED COMPLAINT with the Clerk of the Court for the United States District Court, District of Nevada by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system: BILLY CEPERO #94730
CARE OF NNCC LAW LIBRARIAN
NORTHERN NEVADA CORRECTIONAL CENTER
PO BOX 7000
CARSON CITY, NV 89702
lawlibrary@doc.nv.gov
___________
Elizabeth A. Avram