1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 BRANDON GREEN, Case No. 2:21-cv-00681-RFB-MDC
8 Plaintiff, ORDER
9 v.
10 CHARLES DANIELS, et al.,
11 Defendants.
12 13 I. INTRODUCTION 14 Before the Court are Plaintiff’s Motion to Correct, Objections to Magistrate Orders, and 15 Motion for Consideration. ECF Nos. 121, 132, 133, 136. 16 II. PROCEDURAL BACKGROUND 17 On April 23, 2021, the Plaintiff initiated this case by filing the Complaint. ECF No. 1. On 18 January 31, 2022, the Court screened the Plaintiff’s Complaint. ECF Nos. 10, 11. On January 11, 19 2023, the Plaintiff filed a Motion for Summary Judgment. ECF No. 42. On July 31, 2023, the 20 Motion for Summary Judgment was denied without prejudice and the Court referred the case to 21 Magistrate Judge Ferenbach for the scheduling of a settlement conference. ECF No. 88. On August 22 15, 2023, the Plaintiff sent a notice of an appeal. ECF No. 90. On September 27, 2023, the Ninth 23 Circuit dismissed the appeal. ECF No. 96. On October 5, 2023, Judge Ferenbach held a settlement 24 conference. ECF No. 97. The conference was continued to December 14, 2023, but was 25 subsequently converted into a motion hearing. 26 On January 8, 2024, the Plaintiff submitted a Motion for Summary Judgment. ECF No. 27 114. On January 9, 2024, this case was reassigned to the Honorable Magistrate Judge Maximiliano 28 Couvillier. ECF No. 117. On June 7, 2024, this Court denied the Motion for Summary Judgment 1 without prejudice as premature. ECF No. 151. 2 III. MOTION TO CORRECT 3 Plaintiff submits a Motion to Correct indicating that his exhibits to support his Motion for 4 Summary Judgment are separately docketed; however, he wishes for them to be considered 5 together. This Court denied Plaintiff’s Motion for Summary Judgment without prejudice, and 6 provided a new deadline to refile the motion. Accordingly, this Motion to Correct is dismissed as 7 moot. 8 IV. OBJECTION TO MAGISTRATE ORDERS 9 The Court addresses each objection, in turn. 10 a. First Objection to Magistrate Order 11 First, Plaintiff objects to Judge Couvillier’s order denying Plaintiff’s Motion for Transcript. 12 A magistrate judge may decide non-dispositive pretrial matters. Fed. R. Civ. P. 72(a); 28 13 U.S.C. § 636(b)(1)(A). The magistrate judge’s order generally operates as a final 14 determination. LR IB 1-3. But if a party timely objects to the magistrate judge’s order, a district 15 court judge must review the order and “set aside any part [...] that is clearly erroneous or is contrary 16 to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); LR IB 3-1(a). “Clear error occurs when 17 the reviewing court on the entire record is left with the definite and firm conviction that a mistake 18 has been committed.” Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 950 (9th Cir. 2013) (internal 19 quotation marks and citations omitted). “An order is contrary to law when it fails to apply or 20 misapplies relevant statutes, case law, or rules of procedure.” Jadwin v. Cty. of Kern, 767 F. Supp. 21 2d 1069, 1110-11 (E.D. Cal. 2011) (internal quotation marks and citations omitted). 22 In his order, Judge Couvillier granted Plaintiff’s Motion for Transcripts in part. Plaintiff’s 23 motion indicated that he needed transcripts from the December 14, 2023, hearing because he 24 needed to note the remaining deadlines. Plaintiff’s motion provides additional reasoning for his 25 request. He notes that he may use the Defendants’ statements on the record to support his Motion 26 to Compel. However, Judge Couvillier has denied the Motion to Compel. Therefore, this objection 27 is denied for mootness. 28 Additionally, transcripts are not loaded to the docket as a matter of course. Transcripts are 1 only loaded to the docket if a party orders a transcript and requests delivery in that manner, or if a 2 presiding judge, at her discretion, orders the transcript be loaded. The Local Rules state that 3 transcripts of court proceedings are only provided to the parties if they order and pay for the 4 transcripts; these fees are non-taxable. LR 54-3. The only type of hearing where the Court itself 5 must order a transcript is an Evidentiary Hearing in a Death Penalty case. LSR 5-3. The Court 6 website has a section explaining how a party or counsel may order a transcript of a court 7 proceeding. ORDERING TRANSCRIPTS – DISTRICT OF NEVADA, https://www.nvd.uscourts.gov/case- 8 information/ordering-transcripts (last visited June 7, 2024). 9 b. Second Objection to Magistrate Order 10 Second, Plaintiff objects to Judge Couvillier’s order which denied Plaintiff’s Motion to 11 Request an Expert/Independent Witness, Motion to Request a Physical Examination, and Motion 12 to Compel Discovery. 13 A magistrate judge may decide non-dispositive pretrial matters. Fed. R. Civ. P. 72(a); 28 14 U.S.C. § 636(b)(1)(A). The magistrate judge’s order generally operates as a final 15 determination. LR IB 1-3. But if a party timely objects to the magistrate judge’s order, a district 16 court judge must review the order and “set aside any part [...] that is clearly erroneous or is contrary 17 to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); LR IB 3-1(a). ““Clear error occurs when 18 the reviewing court on the entire record is left with the definite and firm conviction that a mistake 19 has been committed.” Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 950 (9th Cir. 2013) (internal 20 quotation marks and citations omitted). ”An order is contrary to law when it fails to apply or 21 misapplies relevant statutes, case law, or rules of procedure.” Jadwin v. Cty. of Kern, 767 F. Supp. 22 2d 1069, 1110-11 (E.D. Cal. 2011) (internal quotation marks and citations omitted). 23 The Motion to Request an Expert Witness was denied because the court found that the civil 24 rights claims were not so complex as to require the testimony of expert witnesses to assist the trier 25 of fact. See Fed. R. Evid. 706(a) (The Federal Rules of Evidence allow a district court to appoint 26 an expert on its own motion or on the motion of a party.). Plaintiff responds that he has continual 27 physical pain. The Motion to Request a Physical Examination was denied because the requested 28 relief was admittedly already provided and the request was an indirect attempt to request an expert 1 witness. Plaintiff asserts that his request is an attempt to determine the severity of his condition.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *
7 BRANDON GREEN, Case No. 2:21-cv-00681-RFB-MDC
8 Plaintiff, ORDER
9 v.
10 CHARLES DANIELS, et al.,
11 Defendants.
12 13 I. INTRODUCTION 14 Before the Court are Plaintiff’s Motion to Correct, Objections to Magistrate Orders, and 15 Motion for Consideration. ECF Nos. 121, 132, 133, 136. 16 II. PROCEDURAL BACKGROUND 17 On April 23, 2021, the Plaintiff initiated this case by filing the Complaint. ECF No. 1. On 18 January 31, 2022, the Court screened the Plaintiff’s Complaint. ECF Nos. 10, 11. On January 11, 19 2023, the Plaintiff filed a Motion for Summary Judgment. ECF No. 42. On July 31, 2023, the 20 Motion for Summary Judgment was denied without prejudice and the Court referred the case to 21 Magistrate Judge Ferenbach for the scheduling of a settlement conference. ECF No. 88. On August 22 15, 2023, the Plaintiff sent a notice of an appeal. ECF No. 90. On September 27, 2023, the Ninth 23 Circuit dismissed the appeal. ECF No. 96. On October 5, 2023, Judge Ferenbach held a settlement 24 conference. ECF No. 97. The conference was continued to December 14, 2023, but was 25 subsequently converted into a motion hearing. 26 On January 8, 2024, the Plaintiff submitted a Motion for Summary Judgment. ECF No. 27 114. On January 9, 2024, this case was reassigned to the Honorable Magistrate Judge Maximiliano 28 Couvillier. ECF No. 117. On June 7, 2024, this Court denied the Motion for Summary Judgment 1 without prejudice as premature. ECF No. 151. 2 III. MOTION TO CORRECT 3 Plaintiff submits a Motion to Correct indicating that his exhibits to support his Motion for 4 Summary Judgment are separately docketed; however, he wishes for them to be considered 5 together. This Court denied Plaintiff’s Motion for Summary Judgment without prejudice, and 6 provided a new deadline to refile the motion. Accordingly, this Motion to Correct is dismissed as 7 moot. 8 IV. OBJECTION TO MAGISTRATE ORDERS 9 The Court addresses each objection, in turn. 10 a. First Objection to Magistrate Order 11 First, Plaintiff objects to Judge Couvillier’s order denying Plaintiff’s Motion for Transcript. 12 A magistrate judge may decide non-dispositive pretrial matters. Fed. R. Civ. P. 72(a); 28 13 U.S.C. § 636(b)(1)(A). The magistrate judge’s order generally operates as a final 14 determination. LR IB 1-3. But if a party timely objects to the magistrate judge’s order, a district 15 court judge must review the order and “set aside any part [...] that is clearly erroneous or is contrary 16 to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); LR IB 3-1(a). “Clear error occurs when 17 the reviewing court on the entire record is left with the definite and firm conviction that a mistake 18 has been committed.” Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 950 (9th Cir. 2013) (internal 19 quotation marks and citations omitted). “An order is contrary to law when it fails to apply or 20 misapplies relevant statutes, case law, or rules of procedure.” Jadwin v. Cty. of Kern, 767 F. Supp. 21 2d 1069, 1110-11 (E.D. Cal. 2011) (internal quotation marks and citations omitted). 22 In his order, Judge Couvillier granted Plaintiff’s Motion for Transcripts in part. Plaintiff’s 23 motion indicated that he needed transcripts from the December 14, 2023, hearing because he 24 needed to note the remaining deadlines. Plaintiff’s motion provides additional reasoning for his 25 request. He notes that he may use the Defendants’ statements on the record to support his Motion 26 to Compel. However, Judge Couvillier has denied the Motion to Compel. Therefore, this objection 27 is denied for mootness. 28 Additionally, transcripts are not loaded to the docket as a matter of course. Transcripts are 1 only loaded to the docket if a party orders a transcript and requests delivery in that manner, or if a 2 presiding judge, at her discretion, orders the transcript be loaded. The Local Rules state that 3 transcripts of court proceedings are only provided to the parties if they order and pay for the 4 transcripts; these fees are non-taxable. LR 54-3. The only type of hearing where the Court itself 5 must order a transcript is an Evidentiary Hearing in a Death Penalty case. LSR 5-3. The Court 6 website has a section explaining how a party or counsel may order a transcript of a court 7 proceeding. ORDERING TRANSCRIPTS – DISTRICT OF NEVADA, https://www.nvd.uscourts.gov/case- 8 information/ordering-transcripts (last visited June 7, 2024). 9 b. Second Objection to Magistrate Order 10 Second, Plaintiff objects to Judge Couvillier’s order which denied Plaintiff’s Motion to 11 Request an Expert/Independent Witness, Motion to Request a Physical Examination, and Motion 12 to Compel Discovery. 13 A magistrate judge may decide non-dispositive pretrial matters. Fed. R. Civ. P. 72(a); 28 14 U.S.C. § 636(b)(1)(A). The magistrate judge’s order generally operates as a final 15 determination. LR IB 1-3. But if a party timely objects to the magistrate judge’s order, a district 16 court judge must review the order and “set aside any part [...] that is clearly erroneous or is contrary 17 to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); LR IB 3-1(a). ““Clear error occurs when 18 the reviewing court on the entire record is left with the definite and firm conviction that a mistake 19 has been committed.” Smith v. Clark Cty. Sch. Dist., 727 F.3d 950, 950 (9th Cir. 2013) (internal 20 quotation marks and citations omitted). ”An order is contrary to law when it fails to apply or 21 misapplies relevant statutes, case law, or rules of procedure.” Jadwin v. Cty. of Kern, 767 F. Supp. 22 2d 1069, 1110-11 (E.D. Cal. 2011) (internal quotation marks and citations omitted). 23 The Motion to Request an Expert Witness was denied because the court found that the civil 24 rights claims were not so complex as to require the testimony of expert witnesses to assist the trier 25 of fact. See Fed. R. Evid. 706(a) (The Federal Rules of Evidence allow a district court to appoint 26 an expert on its own motion or on the motion of a party.). Plaintiff responds that he has continual 27 physical pain. The Motion to Request a Physical Examination was denied because the requested 28 relief was admittedly already provided and the request was an indirect attempt to request an expert 1 witness. Plaintiff asserts that his request is an attempt to determine the severity of his condition. 2 Plaintiff’s Motion to Compel Discovery because of a failure to comply with a local rule requiring 3 that the petitioner submit a declaration certifying good faith efforts to meet and confer with the 4 opposing party; and because the Defendant’s certified production of a full medical file to Plaintiff 5 and Plaintiff did not dispute this. Plaintiff’s response is unclear, but he seems to assert that he has 6 received over 1,000 pages of documentation, but he has not received the medical records he would 7 like. 8 The Court finds nothing that is clearly erroneous or is contrary to law. Fed. R. Civ. P. 9 72(a); 28 U.S.C. § 636(b)(1)(A); LR IB 3-1(a). The Court finds nothing contrary to law as the 10 court’s order did not misapply relevant statutes, case law, or rules of procedure. See Smith, 727 11 F.3d at 950. Therefore, this Objection is denied. 12 V. MOTION FOR CONSIDERATION 13 Plaintiff’s Motion for Consideration asserts that another incarcerated person complained 14 of knee pain and received an MRI. Plaintiff asserts that he should have originally been provided 15 with an MRI when he complained of knee and shoulder pain. The Defendants respond that Plaintiff 16 is attempting to supplement his Motion for Summary Judgment without leave from this Court. 17 Plaintiff’s brief states that he does not wish to supplement his Motion for Summary Judgment, but 18 wishes to inform the Court of information as Plaintiff becomes aware of it. 19 Courts are specifically directed to construe pro se pleadings liberally and this duty applies 20 equally to pro se motions and with special force to filings from pro se inmates. See United States 21 v. Qazi, 975 F.3d 989, 993 (9th Cir. 2020). The Court construes the Motion for Consideration as 22 a Motion to Supplement. 23 On motion and reasonable notice, the court may, on just terms, permit a party to serve a 24 supplemental pleading setting out any transaction, occurrence, or event that happened after the 25 date of the pleading to be supplemented. Fed. R. Civ. P. 15(d). The court may permit 26 supplementation even though the original pleading is defective in stating a claim or defense. Id. 27 Supplemental briefs may be filed only upon a showing of good cause, and only with leave of court. 28 LR 7-2(g). ] Here, Plaintiff attempts to provide the Court with personal, medical information concerning anon-party to this case. Plaintiff has not sought leave to supplement any of his motions. See Fed. R. Civ. P. 15(d); LR 7-2(g). Moreover, the Court does not find this pleading relevant. Under Rule 4| 12(f), a court may strike from a pleading any redundant, immaterial, impertinent, or scandalous 5 | matter. Here, Plaintiff provides the medical information of a non-party which the Court finds 6 | immaterial. The Court strikes this pleading. 7 The Court wants to clarify this Order does not prevent the Plaintiff from filing a motion for 8 | apreliminary injunction or seeking other types of relief for medical or other conditions connected 9 | to his claims in this case. He must, however, do so in the proper form to obtain such treatment or 10 | _ relief. The Court will continue to consider and review all of his motions or requests. 1] 12 VI. CONCLUSION 13 IT IS THEREFORE ORDERED that the (ECF No. 121) Motion to Correct is DISMISSED as moot. 15 IT IS FURTHER ORDERED that the (ECF No. 132) Objection Magistrate Order is 16| DENIED. 17 IT IS FURTHER ORDERED that the (ECF No. 133) Motion for Consideration 1s 18 | DENIED and STRICKEN from the record. 19 IT IS FURTHER ORDERED that the (ECF No. 132) Objection Magistrate Order is 20) DENIED. 21 22 DATED: September 29, 2024 23 24 25 < □ 26 RICHARD F. BOULWARE, II 27 UNITED STATES DISTRICT JUDGE 28
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