Opinion
2:22-cv-02175-CDS-EJY
10-05-2023
Joseph Downing Jr., Plaintiff v. State of Nevada, et al., Defendants.
ORDER
ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE.
This case commenced in December 2022 with Plaintiff's Civil Rights Complaint. ECF No. 1-1. Plaintiff subsequently applied to proceed in forma pauperis (“IFP”) on April 12 and June 30, 2023. ECF Nos. 10, 15. Plaintiff also filed motions for a temporary restraining order, preliminary injunction, and to subpoena audio and video evidence (the “Motions”). ECF Nos. 17, 18, 19. On August 18, 2023, the Court issued a Screening Order deferring a ruling on Plaintiff's June 30, 2023 IFP application(ECF No. 15); denying the Motions, permitting one claim to proceed, dismissing other claims without prejudice and without leave to amend, and dismissing the remaining claims with leave to amend. ECF No. 22. The Court gave Plaintiff until September 21, 2023 to file a third amended complaint. Id. at 17. The Court specifically stated that if Plaintiff chose not to file a third amended complaint by the deadline, this action would proceed against Nurse Ed solely on the Eighth Amendment claim for indifference to rectal bleeding condition. Id.
On May 30, 2023, the Court deferred ruling on Plaintiff's April 12, 2023 IFP application. ECF No. 14.
The deadline to amend has expired and Plaintiff did not file a third amended complaint. Plaintiff, however, filed motions seeking a copy of the docket log and court minutes and for the Court to require Defendants to respond to his motions for a temporary restraining order, preliminary injunction, and to subpoena audio and video evidence (the Motions”). ECF Nos. 23, 24. Plaintiff previously noticed the Court regarding confusion with his filings made in this action and in his action styled Downing v. Kahn, Case No. 2:23-cv-00082-ART-NJK. ECF Nos. 20, 21. In light of Plaintiff's confusion, the Court finds good cause exists to send Plaintiff a courtesy copy of the docket sheet in this action. The Court previously denied the Motions for the reasons explained in the Screening Order. Plaintiff's motion for an order requiring Defendants to respond to the Motions is moot. Finally, Plaintiff's April 12, 2023 IFP application was mooted by his June 30, 2023 application, which is complete. Compare ECF No. 10, with ECF No. 15.
Accordingly, IT IS HEREBY ORDERED that this action will proceed against Nurse Ed solely on the Eighth Amendment claim regarding indifference to the rectal bleeding condition.
IT IS FURTHER ORDERED that Plaintiff's IFP application (ECF No. 10) is DENIED as moot. Plaintiff's IFP application (ECF No. 15) remains pending, and the Court has deferred a decision on it. ECF No. 22 at 16.
IT IS FURTHER ORDERED that the Motion for Complete Docket Log and Court Minutes (ECF No. 23) is GRANTED.
IT IS FURTHER ORDERED that the Motion Requesting Responses (ECF No. 24) is DENIED as moot.
IT IS FURTHER ORDERED that, given the nature of the claims that the Court has permitted to proceed, this action is stayed for 90 days to allow Plaintiff and Defendant an opportunity to settle their dispute before the Court determines whether to grant Plaintiff s IFP application, the $350 filing fee is paid, an answer is filed, or the discovery process begins. During this 90-day stay period and until the Court lifts the stay, no other pleadings or papers may be filed in this case, and the parties will not engage in any discovery, nor are the parties required to respond to any paper filed in violation of the stay unless specifically ordered by the Court to do so. The Court will refer this case to the Court's Inmate Early Mediation Program, and the Court will enter a subsequent order about that matter. Regardless, on or before 90 days from the date this Order is entered, the Office of the Attorney General will file the report form attached to this Order regarding the results of the 90-day stay, even if a stipulation for dismissal is entered before the end of the 90-day stay. If the parties proceed with this action, the Court will then issue an Order setting a date for Defendant to file an answer or other response. Following the filing of an answer, the Court will issue a scheduling order setting discovery and dispositive motion deadlines.
IT IS FURTHER ORDERED that “settlement” may or may not include payment of money damages. It also may or may not include an agreement to resolve Plaintiff's issues differently. A compromise agreement is one in which neither party is completely satisfied with the result, but both have given something up and both have obtained something in return.
IT IS FURTHER ORDERED that if the case does not settle, then the Court will determine whether to grant Plaintiff's IFP application. Plaintiff will be required to pay the full $350 statutory filing fee for a civil action regardless of whether the Court grants his IFP application. This fee cannot be waived, and the fee cannot be refunded once the Court enters an order granting Plaintiff's IFP application. If Plaintiff is allowed to proceed IFP, the fee will be paid in installments from his prison trust account. See 28 U.S.C. § 1915(b). But if Plaintiff is not allowed to proceed IFP, the full $350 statutory filing fee for a civil action plus the $52 administrative filing fee, for a total of $402, will be due immediately.
IT IS FURTHER ORDERED that if any party seeks to have this case excluded from the inmate mediation program, that party will file a “motion to exclude case from mediation” no later than 21 days before the date set for mediation. The responding party will have 7 days to file a response. No reply will be filed. Thereafter, the Court will issue an order, set the matter for hearing, or both.
IT IS FURTHER ORDERED that if Plaintiff needs an interpreter to participate in the mediation program, he will file a notice identifying the interpretation language and the need for the interpreter within 30 days from the date of this Order.
IT IS FURTHER ORDERED that the Attorney General's Office will advise the Court within 21 days of the date of this Order whether it will enter a limited notice of appearance on behalf of Defendants for the purpose of settlement. No defenses or objections, including lack of service, will be waived because of the filing of the limited notice of appearance.
IT IS FURTHER ORDERED that the Clerk of Court must (1) send to Plaintiff Joseph Downing, Jr. a courtesy copy of the docket sheet in this action; (2) add the Nevada Department of Corrections to the docket as an Interested Party; and (3) electronically serve a copy of this Order, the Screening Order (ECF No. 22), and Plaintiff's Second Amended Complaint (ECF No. 16) on the Office of the Attorney General of the State of Nevada by adding the Attorney General of the State of Nevada to the docket. This does not indicate acceptance of service.
REPORT OF ATTORNEY GENERAL RE: RESULTS OF 90-DAY STAY
NOTE: ONLY THE OFFICE OF THE ATTORNEY GENERAL SHALL FILE THIS FORM. THE INMATE PLAINTIFF SHALL NOT FILE THIS FORM.
On ___________, the Court issued its screening order stating that it had conducted its screening pursuant to 28 U.S.C. § 1915A, and that certain specified claims in this case would proceed. The Court ordered the Office of the Attorney General of the State of Nevada to file a report ninety (90) days after the date of the entry of the Court's screening order to indicate the status of the case at the end of the 90-day stay. By filing this form, the Office of the Attorney General hereby complies.
REPORT FORM
[Identify which of the following two situations (identified in bold type) describes the case, and follow the instructions corresponding to the proper statement.]
Situation One: Mediated Case : The case was assigned to mediation by a court-appointed mediator during the 90-day stay. [If this statement is accurate, check ONE of the six statements below and fill in any additional information as required, then proceed to the signature block.]
___ A mediation session with a court-appointed mediator was held on __________________ [enter date], and as of this date, the parties have reached a settlement (even if paperwork to memorialize the settlement remains to be completed). (If this box is checked, the parties are on notice that they must SEPARATELY file either a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in the case until a specified date upon which they will file a stipulation of dismissal.)
___ A mediation session with a court-appointed mediator was held on ____________ [enter date], and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action.
___ No mediation session with a court-appointed mediator was held during the 90-day stay, but the parties have nevertheless settled the case. (If this box is checked, the parties are on notice that they must SEPARATELY file a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in this case until a specified date upon which they will file a stipulation of dismissal.)
___ No mediation session with a court-appointed mediator was held during the 90-day stay, but one is currently scheduled for _________[enter date].
___ No mediation session with a court-appointed mediator was held during the 90-day stay, and as of this date, no date certain has been scheduled for such a session.
___ None of the above five statements describes the status of this case. Contemporaneously with the filing of this report, the Office of the Attorney General of the State of Nevada is filing a separate document detailing the status of this case.
Situation Two: Informal Settlement Discussions Case : The case was NOT assigned to mediation with a court-appointed mediator during the 90-day stay; rather, the parties were encouraged to engage in informal settlement negotiations. [If this statement is accurate, check ONE of the four statements below and fill in any additional information as required, then proceed to the signature block.]
___ The parties engaged in settlement discussions and as of this date, the parties have reached a settlement (even if the paperwork to memorialize the settlement remains to be completed). (If this box is checked, the parties are on notice that they must SEPARATELY file either a contemporaneous stipulation of dismissal or a motion requesting that the Court continue the stay in this case until a specified date upon which they will file a stipulation of dismissal.)
___ The parties engaged in settlement discussions and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action.
___ The parties have not engaged in settlement discussions and as of this date, the parties have not reached a settlement. The Office of the Attorney General therefore informs the Court of its intent to proceed with this action.
___ None of the above three statements fully describes the status of this case. Contemporaneously with the filing of this report, the Office of the Attorney General of the State of Nevada is filing a separate document detailing the status of this case.
| Date Filed | # | Docket Text |
| 12/30/2022 | Case randomly assigned to Judge Cristina D. Silva and Magistrate Judge Elayna J. Youchah. (JQC) (Entered: 12/30/2022) | |
| 12/30/2022 | 1 | RECEIPT of Initiating Documents by Court on behalf of Plaintiff. No Application to Proceed IFP or Filing Fee received. (Attachments: # 1 Complaint) (LOE) (Entered: 12/30/2022) |
| 12/30/2022 | (Image Omitted) | (Court only) **NON-PUBLIC** P-flag (P10) assigned. (WJ) (Entered: 12/30/2022) |
| 01/13/2023 | 2 | ORDER. IT IS ORDERED that on or before 2/13/2023, Plaintiff must either pay the $402.00 filing fee, or file a complete IFP Application with the Court. IT IS FURTHER ORDERED that the Clerk of the Court will send Plaintiff the approved form application to proceed in forma pauperis for inmate along with the information and instructions for filing the same. IT IS FURTHER ORDERED that the Court will retain Plaintiffs Complaint (ECF No. 1-1), but will not file it at this time. Signed by Magistrate Judge Elayna J. Youchah on 1/13/2023. (Attachments: # 1 IFP Application and Instructions)(Copies have been distributed pursuant to the NEF - KF) (Entered: 01/13/2023) |
| 01/20/2023 | 3 | MOTION/APPLICATION for Leave to Proceed in forma pauperis by Plaintiff Joseph Downing, Jr. (CJS) (Entered: 01/20/2023) |
| 02/14/2023 | 4 | FIRST AMENDED COMPLAINT with Jury Demand against H.D.S.P. Physician/Doctor, High Desert State Prison, Nevada Dept. of Corrections, State of Nevada by Joseph Downing, Jr. No party changes made to docket. (CJS) (Entered: 02/14/2023) |
| 02/14/2023 | (Image Omitted) | (Court only) ***Notes: Amended complaint ECF No. 4 filed. No parties were added to the docket at this time. Please advise docketing if/when appropriate to amend parties. (CJS) (Entered: 02/14/2023) |
| 02/28/2023 | 5 | ORDER. IT IS ORDERED that on or before 3/30/2023, Plaintiff must either pay the $402 filing fee for a civil action or file with the Court a complete IFP Application with the Court. IT IS FURTHER ORDERED that the Clerk of the Court will send Plaintiff the approved form application to proceed in forma pauperis for inmate along with the information and instructions for filing the same. Signed by Magistrate Judge Elayna J. Youchah on 2/28/2023. (Attachments: # 1 IFP Application and Instructions)(Copies have been distributed pursuant to the NEF - KF) (Entered: 02/28/2023) |
| 03/29/2023 | 6 | MOTION to Extend Time/Continue (First Request) re ECF No. 5 Order, by Plaintiff Joseph Downing, Jr. Responses due by 4/12/2023. (CJS) (referral) (Entered: 03/29/2023) |
| 03/29/2023 | 7 | MOTION to Compel by Plaintiff Joseph Downing, Jr. Responses due by 4/12/2023. (Image is duplicate of ECF No. 6 .) (CJS) (other) (Entered: 03/29/2023) |
| 03/29/2023 | 8 | MOTION/APPLICATION for Leave to Proceed in forma pauperis by Plaintiff Joseph Downing, Jr. (CJS) (Entered: 03/29/2023) |
| 04/03/2023 | 9 | ORDER. IT IS ORDERED that Plaintiff's Motion for Extension of Time (ECF No. 6) is GRANTED. IT IS FURTHER ORDERED that Plaintiff's Motion filed at ECF No. 7 is DENIED as moot and duplicative. IT IS FURTHER ORDERED that on or before 5/12/2023, Plaintiff must either pay the $402 filing fee, or file a completed financial certificate and a copy of his inmate trust fund account statement for the previous sixmonth period. IT IS FURTHER ORDERED that the Clerk of the Court must send Plaintiff the approved form application to proceed in forma pauperis for an inmate and instructions for the same. IT IS FURTHER ORDERED that if Plaintiff fails to comply with this Order, may result in a recommendation to dismiss this matter without prejudice. Signed by Magistrate Judge Elayna J. Youchah on 4/3/2023. (Attachments: # 1 IFP Application and Instructions)(Copies have been distributed pursuant to the NEF - KF) (Entered: 04/04/2023) |
| 04/12/2023 | 10 | MOTION/APPLICATION for Leave to Proceed in forma pauperis by Plaintiff Joseph Downing, Jr. (CJS) (Entered: 04/12/2023) |
| 04/12/2023 | 11 | MOTION for Reconsideration to Compel High Desert State Prison to Produce my Financial Certificate & Inmate Trust Statements by Plaintiff Joseph Downing, Jr. Responses due by 4/26/2023. (KF) (Entered: 04/13/2023) |
| 04/14/2023 | (Image Omitted) | (Court only) **NON-PUBLIC** Set/Clear Flags (P7 taking over on this case for P10) (LGu) (Entered: 04/14/2023) |
| 05/02/2023 | 12 | MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Elayna J. Youchah on 5/2/2023. By Deputy Clerk: J. Callo. LEGAL ADVICE: Neither the court nor the clerks office can give legal advice. MOTIONS: A document requesting a court order must be styled as a motion, not a letter. See Federal Rules of Civil Procedure 7. Letters to a judge will be disregarded. (Copies have been distributed pursuant to the NEF - JQC)Modified on 5/16/2023 - Event - (JQC). (Main Document 12 replaced on 5/16/2023) (JQC). (Additional attachment(s) added on 5/16/2023: # 1 Letter) (Entered: 05/11/2023) |
| 05/09/2023 | (Image Omitted) | (Court only) **NON-PUBLIC** Set/Clear Flags P9 taking case over from P7. (CH) (Entered: 05/09/2023) |
| 05/15/2023 | 13 | MINUTE ORDER IN CHAMBERS of the Honorable Magistrate Judge Elayna J. Youchah on 5/15/2023. By Deputy Clerk: J. Callo. CASE STATUS INQUIRIES (case in screening): Before the court is your letter requesting status (ECF No.13). As the court clerk advised you in the Advisory Letter confirming receipt of your initial filings, due to the large number of inmate civil rights actions pending before the court, the court is unable to respond in writing to individual inquiries regarding the status of your case. Plaintiff is advised, however, that your case is in line for screening. Plaintiff must await the courts initial review of cases filed ahead of yours which are being addressed at present. As long as you keep the court apprised of your current address, you will receive all court decisions which might affect the status of your case. (Copies have been distributed pursuant to the NEF - JQC) (JQC) Modified on 5/16/2023 - Event - (JQC). (Main Document 13 replaced on 5/16/2023) (JQC). (Additional attachment(s) added on 5/16/2023: # 1 Letter) (JQC). (Entered: 05/15/2023) |
| 05/30/2023 | 14 | ORDER Denying 8 Motion/Application for Leave to Proceed in forma pauperis. Amended Complaint deadline: 6/30/2023. IT IS FURTHER ORDERED that a decision on 10 the application to proceed in forma pauperis is DEFERRED. IT IS FURTHER ORDERED that 11 the motion for reconsideration is DENIED as moot. IT IS FURTHER ORDERED that 4 the entire first amended complaint is DISMISSED without prejudice and with leave to amend. Amended Complaint deadline: 6/30/2023. Signed by Judge Cristina D. Silva on 5/30/2023. (Attachments: # 1 Amended Complaint, # 2 Complaint Form/Instructions, # 3 General Order No. 2021-05.)(Copies have been distributed pursuant to the NEF - JQC) (Entered: 05/30/2023) |
| 06/30/2023 | (Image Omitted) 15 | MOTION/APPLICATION for Leave to Proceed in forma pauperis by Plaintiff Joseph Downing, Jr. (DRM) (Entered: 07/03/2023) |
| 06/30/2023 | 16 | SECOND AMENDED COMPLAINT with Jury Demand Adds and removes parties. (DRM) (Entered: 07/03/2023) |
| 07/07/2023 | 17 | DECLARATION of Plaintiff Joseph Downing, Jr. (KF) (Entered: 07/10/2023) |
| 07/28/2023 | 18 | MOTION to Amend Preliminary Injunction and Temporary Restraining Order filed on 7/7/2023 (ECF No. 17) by Plaintiff Joseph Downing, Jr. Responses due by 8/11/2023. (Attachments: # 1 Exhibits)(GA) (nondispositive) (Entered: 07/28/2023) |
| 07/28/2023 | 19 | MOTION for Subpoena and Preserve Audio and Video by Plaintiff Joseph Downing, Jr. Responses due by 8/11/2023. (GA) (misc) (nondispositive) (Entered: 07/28/2023) |
| 07/28/2023 | 20 | NOTICE Error by E-Filing Motion to Incorrect Case number by Joseph Downing, Jr. (GA) (Entered: 07/28/2023) |
| 08/02/2023 | 21 | REQUEST for Judicial Notice by Plaintiff Joseph Downing, Jr. (CAH) (Entered: 08/04/2023) |
| 08/18/2023 | 22 | ORDER. It is therefore ordered that the 15 application to proceed in forma pauperis is DEFERRED. It is further ordered that defendants Val and Brian Williams are dismissed without prejudice from this action. It is further ordered that the motion for order to show cause for a preliminary injunction and a temporary restraining order and motion to amend or supplement that motion ECF Nos. 17, 18 are DENIED. It is further ordered that the emergency motion for a temporary restraining order ECF No. [18-1] is denied as moot. It is further ordered that the 19 motion to subpoena video and audio records is DENIED without prejudice. It is further ordered that the plaintiff has until September 21, 2023, to file an amended complaint. The Clerk of the Court is directed to add "Ed" to the docket as a defendant in this action and send plaintiff Joseph Downing, Jr., the approved form for filing a 42 U.S.C. § 1983 complaint and instructions for the same and a copy of his 16 second amended complaint (Attached herein for distribution to P via HDSP Law Library) . Signed by Judge Cristina D. Silva on 8/18/2023. (Attachments: # 1 Second Amended Complaint, # 2 Inmate Complaint Form)(Copies have been distributed pursuant to the NEF - ALZ) (Entered: 08/21/2023) |
| 08/28/2023 | 23 | MOTION for Complete Docket Log and Court Minutes, by Plaintiff Joseph Downing, Jr. Responses due by 9/11/2023. (DRM) (misc) (nondispositive) (Entered: 08/28/2023) |
| 08/28/2023 | 24 | MOTION Requesting Responses for Subpoena of Audio & Video, and Temporary Restraining Order and Preliminary Injunction That were Due with Responses by 8/11/23, by Plaintiff Joseph Downing, Jr. Responses due by 9/11/2023. (DRM) (misc) (nondispositive) (Entered: 08/28/2023) |
| 10/05/2023 | 25 | ORDER. IT IS HEREBY ORDERED that this action will proceed against Nurse Ed solely on the Eighth Amendment claim regarding indifference to the rectal bleeding condition. IT IS FURTHER ORDERED that Plaintiffs IFP application 10 is DENIED as moot. Plaintiffs IFP application 15 remains pending, and the Court has deferred a decision on it. ECF No. 22 at 16 . IT IS FURTHER ORDERED that the Motion for Complete Docket Log and Court Minutes 23 is GRANTED. IT IS FURTHER ORDERED that the Motion Requesting Responses 24 is DENIED as moot. IT IS FURTHER ORDERED that, given the nature of the claims that the Court has permitted to proceed, this action is stayed for 90 days to allow Plaintiff and Defendant an opportunity to settle their dispute before the Court determines whether to grant Plaintiff's IFP application, the $350 filing fee is paid, an answer is filed, or the discovery process begins. IT IS FURTHER ORDERED that settlement may or may not include payment of money damages. It also may or may not include an agreement to resolve Plaintiffs issues differently. IT IS FURTHER ORDERED that if the case does not settle, then the Court will determine whether to grant Plaintiffs IFP application. IT IS FURTHER ORDERED that if any party seeks to have this case excluded from the inmate mediation program, that party will file a motion to exclude case from mediation no later than 21 days before the date set for mediation. IT IS FURTHER ORDERED that the Attorney Generals Office will advise the Court within 21 days of the date of this Order whether it will enter a limited notice of appearance on behalf of Defendants for the purpose of settlement. Signed by Magistrate Judge Elayna J. Youchah on 10/5/2023. (Copies have been distributed pursuant to the NEF cc - Copies of docket sheet sent to Plaintiff - CAH) (Entered: 10/05/2023) |