Opinion
Case No. 2:13-cv-00093-RFB-NJK
01-15-2020
DE'MARIAN A. CLEMONS, Plaintiff, v. BRIAN WILLIAMS, et al., Defendants.
AARON D. FORD Attorney Genera D. RANDALL GILMER (Bar No. 14001) Chief Deputy Attorney General JARED M. FROST (Bar No. 11132) Senior Deputy Attorney General State of Nevada Office of the Attorney General 555 East Washington Ave., #3900 Las Vegas, Nevada 89101 (702) 486-3711 (phone) (702) 486-3773 (fax) Email: jfrost@ag.nv.gov Attorneys for Defendants Tanya Hill, Francisco Sanchez, Brian Williams, State of Nevada, and the Nevada Department of Corrections
AARON D. FORD
Attorney Genera
D. RANDALL GILMER (Bar No. 14001)
Chief Deputy Attorney General
JARED M. FROST (Bar No. 11132)
Senior Deputy Attorney General
State of Nevada
Office of the Attorney General
555 East Washington Ave., #3900
Las Vegas, Nevada 89101
(702) 486-3711 (phone)
(702) 486-3773 (fax)
Email: jfrost@ag.nv.gov Attorneys for Defendants Tanya Hill, Francisco Sanchez,
Brian Williams, State of Nevada, and the
Nevada Department of Corrections
STATE DEFENDANTS' UNOPPOSED MOTION AND PROPOSED ORDER TO MAKE PLAINTIFF AVAILABLE FOR AN EXPERT MEDICAL EXAMINATION
Defendants Tanya Hill, Francisco Sanchez, Brian Williams, State of Nevada, and the Nevada Department of Corrections (the "State Defendants"), by and through counsel, Randall Gilmer, Chief Deputy Attorney General, and Jared M. Frost, Senior Deputy Attorney General, hereby move for an order compelling Plaintiff to make himself available for a physical examination. Defendants' unopposed motion is made and based on the following memorandum of points and authorities, the attached Declaration of Counsel, the pleadings and papers on file, and any additional evidence the Court deems appropriate to consider. ///
MEMORANDUM OF POINTS AND AUTHORITIES
I. BACKGROUND
This is an inmate civil rights and state tort matter. In the First Amended Complaint, Plaintiff DeMarian Clemons alleges he suffered various physical injuries as the result of Defendants' acts or omissions. See ECF No. 242 at 3-4. On October 25, 2019, the Court granted Plaintiff's unopposed motion to make Plaintiff available for a medical examination by his expert. See ECF No. 276. Plaintiff's expert examination was recently completed, and the State Defendants now seek an order under Rule 35 to conduct their own expert medical examination.
II. APPLICABLE LAW
Rule 35 of the Federal Rules of Civil Procedure provides as follows:
(a) Order for an Examination.
(1) In General. The court where the action is pending may order a party whose mental or physical condition—including blood group—is in controversy to submit to a physical or mental examination by a suitably licensed or certified examiner. The court has the same authority to order a party to produce for examination a person who is in its custody or under its legal control.
(2) Motion and Notice; Contents of the Order. The order:
(A) may be made only on motion for good cause and on notice to all parties and the person to be examined; and
(B) must specify the time, place, manner, conditions, and scope of the examination, as well as the person or persons who will perform it.
III. ARGUMENT
The Court should determine the State Defendants' Unopposed Motion is supported by good cause and grant the Motion. The State Defendants have arranged for Plaintiff to be examined by their medical expert, Dr. Randa Bascharon, in Las Vegas during the week of January 20, 2020. See Exhibit 1 (Declaration of Counsel). The expert examination is necessary to assess the extent of Plaintiff's injuries and to determine what future care Plaintiff may require. Id. Pursuant to discussions with Plaintiff's counsel, Plaintiff and the State Defendants have agreed that the only persons who will be permitted to attend the examination are:
1. PlaintiffId. Subject to the foregoing agreement, Plaintiff does not oppose the State Defendants' Motion. Id. Further, the State Defendants have contacted Attorney Kerry Doyle in an effort to provide Defendant Cheryl Dressler with an opportunity to be heard. Id. However, as of the filing of this Motion, Ms. Doyle has not responded. Id. Should the State Defendants learn that Defendant Dressler has any objection to their Motion, they will file a notice with the Court. Id.
2. Dr. Bascharon
3. Nevada Department of Corrections staff necessary to ensure the safety and security of Plaintiff; Dr. Bascharon and her staff; and the public.
IV. CONCLUSION
The Court should grant the State Defendants' unopposed motion to make Plaintiff available for a medical examination.
DATED this 14th day of January, 2020.
AARON D. FORD
Attorney General
By: /s/ Jared M. Frost
JARED M. FROST (Bar No. 11132)
Senior Deputy Attorney General
D. RANDALL GILMER (Bar No. 14001)
Chief Deputy Attorney General
Attorneys for Defendants Tanya Hill,
Francisco Sanchez, Brian Williams, State of
Nevada, and the Nevada Department of
Corrections
ORDER
SO ORDERED. The State Defendants are authorized to conduct an expert medical examination of Plaintiff during the week of January 20, 2020. The only persons who may attend the examination are (1) Plaintiff; (2) Dr. Bascharon; and (3) Nevada Department of Corrections staff necessary to ensure the safety and security of Plaintiff; Dr. Bascharon and her staff; and the public.
Dated this 15 day of January, 2020.
/s/_________
UNITED STATES MAGISTRATE JUDGE
CERTIFICATE OF SERVICE
I certify that I am an employee of the State of Nevada, Office of the Attorney General, and that on January 14, 2020, I electronically filed the foregoing STATE DEFENDANTS' UNOPPOSED MOTION AND PROPOSED ORDER TO MAKE PLAINTIFF AVAILABLE FOR AN EXPERT MEDICAL EXAMINATION via this Court's electronic filing system. Parties who are registered with this Court's electronic filing system will be served electronically.
Jason K. Hicks, Esq.
Greenberg Traurig, LLP
10845 Griffith Peak Drive, Suite 600
Las Vegas, Nevada 89135
hicksja@gtlaw.com
and
Michael L. Rosenthal, Esq.
Admitted Pro Hac Vice
Stephen F. Raiola, Esq.
Admitted Pro Hac Vice
Covington & Burling LLP
One City Center
850 Tenth Street, NW
Washington, D.C. 20001
mrosenthal@cov.com
sraiola@cov.com
Attorneys for Plaintiff
Kerry S. Doyle, Esq.
Doyle Law Office, PLLC.
4600 Kietzke Lane, Suite I-207
Reno, Nevada 89502
kerry@rdoylelaw.com
/s/ Carol A. Knight
CAROL A. KNIGHT, an employee of the
Office of the Nevada Attorney General
EXHIBIT 1
Declaration of
Counsel
EXHIBIT 1
AARON D. FORD
Attorney General
D. RANDALL GILMER (Bar No. 14001)
Chief Deputy Attorney General
JARED M. FROST (Bar No. 11132)
Senior Deputy Attorney General
State of Nevada
Office of the Attorney General
555 East Washington Ave., #3900
Las Vegas, Nevada 89101
(702) 486-3711 (phone)
(702) 486-3773 (fax)
Email: jfrost@ag.nv.gov Attorneys for Defendants Tanya Hill,
Francisco Sanchez, Brian Williams,
State of Nevada, and the Nevada Department of Corrections
DECLARATION OF COUNSEL
I, JARED M. FROST, hereby declare, based on personal knowledge and/or information and belief, that the following assertions are true:
1. I am a Senior Deputy Attorney General employed by the Nevada Attorney General in the Litigation Division, and I make this declaration in support of the State Defendants' Unopposed Motion To Make Plaintiff Available For An Expert Medical Examination.
2. The State Defendants (Tanya Hill, Francisco Sanchez, Brian Williams, State of Nevada, and the Nevada Department of Corrections) have arranged for Plaintiff to be examined by their medical expert, Dr. Randa Bascharon, in Las Vegas during the week of January 20, 2020. A more specific date and time is not provided here due to safety and security reasons. Should the Court deem it necessary, the State Defendants will provide this additional information under seal.
3. The expert examination is necessary to assess the extent of Plaintiff's injuries and to determine what future care Plaintiff may require.
4. Pursuant to discussions with Plaintiff's counsel, the State Defendants and Plaintiff have agreed that the only persons who will attend the examination are: (1) Plaintiff; (2) Dr. Bascharon; and (3) Nevada Department of Corrections staff necessary to ensure the safety and security of Plaintiff; Dr. Bascharon and her staff; and the public.
5. On January 13, 2020, Plaintiff's counsel confirmed that, subject to the foregoing agreement, Plaintiff does not oppose the State Defendants' Motion.
6. On January 13, 2020, counsel for the State Defendants also contacted Attorney Kerry Doyle, Esq., concerning their Motion in an effort to provide Defendant Cheryl Dressler with an opportunity to be heard. However, as of the time of filing, Ms. Doyle has not responded.
7. Should the State Defendants learn that Defendant Dressler has any objection to their Motion, they will file a notice with the Court.
Pursuant to 28 U.S.C. section 1746, Declarant certifies, under penalty of perjury, that the foregoing is true and correct.
DATED this 14th day of January, 2020.
AARON D. FORD
Attorney General
By: /s/ Jared M. Frost
JARED M. FROST (Bar No. 11132)
Senior Deputy Attorney General
Attorneys for the State Defendants