Edmisten v. Gittere

• Court: District Court, D. Nevada
• Decided: January 2, 2024
• Docket: 3:22-cv-00158
• Status: Unknown

Opinion

Attorney General 2 JANET L. MERRILL (Bar No. 10736) Deputy Attorney General 3 State of Nevada Office of the Attorney General 4 555 E. Washington Ave., Ste. 3900 Las Vegas, Nevada 89101 5 (702) 486-3370 (phone) (702) 486-3773 (fax) 6 Email: jmerrill@ag.nv.gov 7 Attorneys for Defendants Michael Adams, Christopher Coulston, Daniel Featherly, 8 William Gittere, and Matthew Noriega 9 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA 12 JUSTIN EDMISTEN, Case No. 3:22-cv-00158- CLB 13 Plaintiff, ORDER GRANTING 14 v. DEFENDANTS’ MOTION FOR EXTENSION OF THE 15 WILLIAM GITTERE, et al, DISCOVERY CUT-OFF 16 Defendants. (FIRST REQUEST) 17 18 Defendants Michael Adams, Christopher Coulston, Daniel Featherly, William 19 Gittere and Matthew Noriega, by and through counsel, Aaron D. Ford, Attorney General 20 for the State of Nevada, and Janet L. Merrill, Deputy Attorney General, hereby submit 21 their Motion to Extend the Discovery Cut-off to March 11, 2024. 22 This Motion is made pursuant to the Federal Rule of Civil Procedure 6(b)(1)(B), and 23 it is based upon the following Memorandum of Points and Authorities and all other 24 pleadings and files contained herein. 25 MEMORANDUM OF POINTS AND AUTHORITIES 26 I. INTRODUCTION 27 Good cause exists to extend the discovery cut-off to March 11, 2024, and to set 28 the dispositive motion and pretrial deadlines following the close of the new discovery 2 were propounded by Defendant Daniel Featherly on November 9, 2023. 3 This Motion is brought in good faith and based on a telephonic conference with 4 Plaintiff Justin Edmisten which occurred on December 12, 2023, and correspondence 5 received from Edmisten on or about December 19, 2023 (dated December 1, 2023). 6 II. ALLEGATIONS AND PROCEDURAL HISTORY 7 A. Nature of the Allegations 8 Edmisten filed a conditions-of-confinement claim pursuant to 42 U.S.C. § 1983. 9 After mandatory screening, this Court permitted Edmisten to proceed with his claim 10 against several NDOC staff at Ely State Prison (ESP): Warden Gittere, Senior 11 Correctional Officer Noreagia, Senior Correctional Officer Adams, Correctional Officer) 12 (now Senior Correctional Officer) Featherly, and Correctional Officer) Culston. ECF No. 13 7 at 3-6. 14 Edmisten claims that Defendants Adams and Culston made him go a week or 15 more without a shower because they did not want to risk escorting him to the showers 16 because of his positive Covid-19 test. Id. at 3-4. Edmisten claims that Noreagia and 17 Featherly left urine and feces on the rotunda overnight or for a few days without 18 disposing of the waste, causing Edmisten to catch Covid-19 and suffer from diarrhea, 19 stomach cramps, nose bleeding, congestion, and vomiting. Id. at 4. Edmisten also 20 complains that he was unable to use barber services for three months. Id. at 5. Edmisten 21 claims that Warden Gittere was aware of all of this but did nothing. Id. at 3. All these 22 constitutional violations allegedly occurred between December 26, 2020, and March 17, 23 2021. Id. 24 B. Procedural History 25 On June 5, 2023, Defendants filed a Case Management Report. ECF No. 31. A 26 Case Management Conference was held on June 14, 2023. ECF No. 33. This Court 27 provided 180 days for discovery which calculates to December 11, 2023. Id.1 28 1 A Scheduling Order has not been issued in the case. 2 yet provided any disclosures. 3 On November 9. 2023, Defendant Featherly propounded eight Interrogatories and 4 ten Requests for Admissions on Edmisten. The discovery requests primarily focus on 5 the exhaustion of administrative remedies. Defense counsel did not receive written 6 responses and as such, set up a telephonic conference with Edmisten which occurred on 7 December 12, 2023. During the call Edmisten verbally requested an additional thirty 8 days to respond to Defendant’s discovery requests. Defense counsel verbally granted the 9 extension. 10 Given such, both excusable neglect and good cause exist to extend the discovery 11 period to March 11, 2024. This new deadline permits adequate time for Edmisten to 12 respond to Defendant’s written discovery, provides Edmisten more time to make 13 disclosures as desired, and permit time for the parties to meet and confer should his 14 responses be inadequate or delayed. 15 Based on such, Defendants respectfully ask this Court to grant their motion for 16 an extension of the discovery cut-off as well as set the following deadlines in this matter: 17 • Discovery cutoff: March 11, 2024; 18 • Deadline to file discovery motions: April 9, 2024; 19 • Deadline to file dispositive motions: May 9, 2024; 20 • Deadline to file joint pre-trial order: June 8, 2024. 21 III. LEGAL ARGUMENT 22 Pursuant to FED. R. CIV. P. 6(b)(1) and/or Rule 16 (b), the court may, based on 23 excusable neglect and/or for good cause, extend the discovery cut-off after its expiration. 24 The determination of whether neglect is excusable is an equitable one that 25 depends on at least four factors: (1) the danger of prejudice to the opposing party; (2) the 26 length of the delay and its potential impact on the proceedings; (3) the reason for the 27 delay; and (4) whether the movant acted in good faith. Bateman v. U.S. Postal Service, 28 231 F.3d 1220, 1223–24 (9th Cir. 2000) (citations omitted). 2 benefit to him in extending the discovery cut-off. Undersigned counsel granted him 3 additional time to respond to the discovery requests propounded on him (which include 4 requests for admissions). Edmisten verbally agreed to an extension of the discovery cut- 5 off and indicated that thirty days was adequate. In other words, the parties have 6 stipulated to, at minimum, a thirty-day extension. 7 Defendants, however, out of an abundance of caution, respectfully request a 8 ninety-day extension to the discovery cut-off. The processing of mail from NDOC 9 facilities and its receipt by the Office of Attorney General frequently takes more time 10 than typical due to scanning/processing. Time will be needed to review the responses 11 and assess the need, if any, to meet and confer further. 12 Notably, this is the first request for an extension of any deadline since the Case 13 Management Conference. An additional ninety days of discovery is brief and 14 importantly provides Edmisten time to demonstrate any exhaustion of remedies, an 15 issue raised by Defendants. 16 The delay in filing this Motion stems from the time necessary to set up 17 communications with Edmisten as well as the instant holidays. 18 This Motion is submitted in good faith, agreed to by Edmisten (at least as to thirty 19 days) and is made to provide Edmisten with additional time to respond to Defendant’s 20 discovery requests. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 ||IV. CONCLUSION 2 Based upon the foregoing, Defendants respectfully submit that excusable neglect 3 good cause exist to grant their Motion to extend the discovery cut-off to March 11, 4 || 2024, and to set a dispositive deadline and other pre-trial deadlines thereafter. 5 DATED this 28th day of December 2023. 6 AARON D. FORD 7 Attorney General By: _/s/ Janet L. Merrill 8 JANET L. MERRILL (Bar No. 10736) 9 Deputy Attorney General

10 Attorneys for Defendants 11 12 IS SO ORDERED. 13 ||DATED: January 2, 2024 14 * 15 16 UNITED STATES\MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28