Harris v. Ely State Prison Staff

Opinion

3 * * * 4 AMMAR HARRIS, Case No. 3:21-CV-00380-CLB 5 Plaintiff, ORDER RE: MISCELLANEOUS MOTIONS 6 v. [ECF Nos. 103, 118, 128, 147] 7 ELY STATE PRISON STAFF, et. al.,

8 Defendants. 9 10 Currently pending before the Court are several motions filed by Plaintiff Ammar 11 Harris (“Harris”) and Defendants Mark Boyd, Frank Dreesen, and David Drummond 12 (collectively referred to as “Defendants”). First, Harris filed a motion for required joinder, 13 (ECF No. 103), to which Defendants responded, (ECF No. 122). Second, Defendants filed 14 a motion to dismiss and early exhaustion motion for summary judgment, (ECF No. 118), 15 to which Harris responded, (ECF No. 123). Third, Harris filed a motion for summary 16 judgment, (ECF No. 128), to which Defendants responded, (ECF No. 131), and Harris 17 replied, (ECF No. 134). Finally, Harris filed a motion for settlement conference, (ECF No. 18 147). Each motion is discussed in turn. 20 Harris, a pro se inmate in the custody of the Nevada Department of Corrections, 21 initiated this civil rights action pursuant to 42 U.S.C. § 1983 on August 23, 2021. (ECF No. 22 1.) Harris has filed several complaints in this action, many of which have been dismissed 23 for violations of the Federal Rules of Civil Procedure (“FRCP”), including improper joinder 24 and for failure to state a claim. 25 Before the Court could screen Harris’s initial complaint, Harris filed a motion for 26 leave to file a first amended complaint (“FAC”). (ECF No. 11.) On March 29, 2022, the 27 District Court dismissed the FAC without prejudice but with leave to amend because 28 Harris’s 67-page FAC did not comply with the FRCP. (ECF No. 16.) The Court advised 1 Harris of the requirements under the FRCP to facilitate the filing of a properly formatted 2 SAC. The Court further notified Harris that the failure to comply with these rules when 3 drafting and filing his SAC could result in the action being dismissed. The Court further 4 advised Harris that any attempt to join claims that are not permitted by the FRCP would 5 result in those claims being dismissed as improperly joined. (Id.) 6 On April 21, 2022, Harris filed his second amended complaint (“SAC”), (ECF No. 7 21), which was screened by the District Court on July 26, 2022. (ECF No. 29.) The Court 8 found that the primary claim in Harris’s SAC was an Eighth Amendment claim for 9 deliberate indifference to inmate safety arising from an August 28, 2020 incident against 10 Defendants Cole and Boyd. (Id.) Harris also alleged several other claims, which were 11 ultimately dismissed by the Court: (1) claims related to transport of Harris from High Desert 12 State Prison (“HDSP”) to Ely State Prison (“ESP”) in May 2021, including an American 13 with Disabilities Act (“ADA”) violation, were dismissed without prejudice and without leave 14 to amend based on improper joinder; (2) Eighth Amendment claim for deliberate 15 indifference to inmate safety against Defendants Daniels, Williams, Gittere, Reubart, 16 Drummond, and Doe Defendants was dismissed with leave to amend; (3) Eighth 17 Amendment claim for deliberate indifference to serious medical needs was dismissed 18 against all Defendants with leave to amend; (4) First Amendment claim for retaliation was 19 dismissed with leave to amend; and (5) Fourteenth Amendment claims for denial of access 20 were dismissed with leave to amend. (Id.) The Court gave Plaintiff until August 25, 2022, 21 to file a third amended complaint (“TAC”). (Id.) 22 Shortly before the Court screened the SAC, Harris had submitted his TAC along 23 with a motion for leave to file that complaint. (ECF Nos. 27, 28, 29.) The screening order 24 did not address the TAC or Harris’s motion. Three weeks after the screening order was 25 entered, Harris sought an extension of time to file a new complaint. (ECF No. 33.) The 26 undersigned granted that request, gave Harris until September 23, 2022 to file an 27 amended pleading, and, to avoid docket confusion, directed the Clerk of the Court to strike 28 Harris’s TAC and his motion for leave to file that complaint. (ECF No. 34.) 1 Harris requested that the Court “not strike” his TAC or his motion and requested 2 that the Court proceed with screening the TAC. (ECF No. 36 at 5.) Thus, the Court treated 3 the TAC as the operative complaint, directed the Clerk of the Court to file it as a separate 4 entry on the docket, and the Court screened the TAC. (ECF No. 40.) 5 Specifically, the Court again found that the primary claim in the TAC related to an 6 Eighth Amendment claim for deliberate indifference to inmate safety arising from the 7 August 28, 2020 incident against Defendants Cole and Boyd. (Id.) Harris was also allowed 8 to proceed on a First Amendment retaliation claim against Defendants Dreesen and 9 Drummond. (Id.) The following claims were dismissed without prejudice: (1) Eighth 10 Amendment claim for deliberate indifference to serious medical needs; and (2) Fourteenth 11 Amendment claim for denial of access to the courts and the grievance process. (Id.) 12 Further, all claims based on Harris’s transport between HDSP and ESP on May 19, 2021 13 were dismissed without prejudice and without leave to amend as improperly joined: (1) the 14 Eighth Amendment claim for deliberate indifference to inmate safety; (2) the Fourteenth 15 Amendment claim for denial of access to the courts; (3) the ADA claim; and (4) the claim 16 alleging a breach of the February 2021 settlement agreement between the NDOC and the 17 Department of Justice. (Id.) 18 This case was then referred to the Court’s Inmate Early Mediation (“IEM”) program. 19 (ECF No. 40.) Harris, however, filed a motion to exclude the case from mediation. (ECF 20 No. 42.) On January 31, 2023, the Court held a hearing on the motion to exclude and 21 denied the motion. (ECF No. 46.) On March 29, 2023, Harris filed a notice of appeal as to 22 the screening order on the TAC. (ECF No. 50). Thus, the Court vacated and stayed the 23 IEM pending the outcome of the appeal. (ECF No. 52.) On June 2, 2023, the appeal was 24 dismissed for lack of jurisdiction. (ECF No. 55.) Ultimately, a mediation was held on 25 October 3, 2023. (ECF No. 72.) Unfortunately, the parties were unable to settle this case. 26 Thereafter, the Court granted Harris’s IFP Application, and this case was returned to the 27 normal litigation track. (ECF No. 73.) On December 11, 2023, Defendants Boyd, Dreesen, 28 and Drummond filed their answer to the TAC. (ECF No. 86.) To date, Defendant Cole has 1 not been served. 2 On December 12, 2023, the Court scheduled a mandatory case management 3 conference (“CMC”) with the parties that was held on January 8, 2024. (ECF No. 99.) 4 Before the CMC, Harris filed a motion for court order to answer fourth amended complaint 5 as well as a Fourth Amended Complaint. (ECF Nos. 93, 94). At the CMC, the Court 6 addressed the motion regarding the Fourth Amended Complaint and set briefing on a 7 motion to dismiss the Fourth Amended Complaint. (ECF No. 99.) Thus, the Fourth 8 Amended Complaint, (ECF No. 94), is the operative complaint in this action. 9 The Fourth Amended Complaint closely follows the TAC. (Compare ECF No. 94, 10 with ECF No. 41.) Harris again asserts claims for Eighth Amendment failure to protect and 11 First Amendment retaliation. (ECF No. 94 at 6-10.) Harris also attempts to reallege several 12 claims that are unrelated to the August 2020 incident. (See id.) 13 Thereafter, Harris filed a motion for joinder of defendant related to the ADA claim. 14 (ECF No. 103.) Defendants filed a motion to dismiss the Fourth Amended Complaint on 15 January 29, 2024. (ECF No. 118.) Harris filed his motion for summary judgment on 16 February 9, 2024. (ECF No. 128.) 17 On March 7, 2024, the Court held a telephonic status conference. (ECF No. 135.) 18 At the hearing, the Court reconsidered and vacated its prior order denying Harris's Motion 19 for Referral to the Pro Bono Lawyer Program (“Program”), (ECF No. 85), and referred the 20 case to the Program for appointment of counsel. (ECF No. 135.) Additionally, the Court 21 stayed the case and denied with leave to refile all pending motions, (ECF Nos. 103, 118, 22 and 128). 23 On April 24, 2024, the Court appointed pro bono counsel for Harris. (ECF No. 138.) 24 On May 8, 2024, pro bono counsel filed a motion to withdraw as counsel for Harris based 25 on a deterioration of their relationship. (ECF No. 145.) Harris did not oppose or otherwise 26 respond to the motion. Based on the representations made in the motion and Harris’s own 27 statements regarding his desire to represent himself at the status conference on March 7, 28 2024, the Court granted the motion to withdraw as counsel and withdrew the referral to 1 the pro bono program. (ECF No. 146.) The Court stated that it would address the 2 previously filed motions at ECF Nos. 103, 118, and 128, in due course. Finally, on June 3 11, 2024, Harris filed a motion for settlement conference. (ECF No. 147.) 4 The Court will now address the following pending motions: (1) Harris’s motion for 5 required joinder, (ECF No. 103); (2) Defendants’ motion to dismiss and early exhaustion 6 motion for summary judgment, (ECF No. 118); (3) Harris’s motion for summary judgment, 7 (ECF No. 128); and (4) Harris’s motion for settlement conference, (ECF No. 147). 9 First, before the Court is Defendants’ motion to dismiss, which argues Harris’s 10 Fourth Amended Complaint is an attempt “to take another bite at the apple to bring claims 11 which the Court on screening has previously dismissed.” (ECF No. 118.) 12 Under Federal Rule of Civil Procedure 12(b)(6), a party may file a motion to dismiss 13 on the grounds that a complaint “fail[s] to state a claim upon which relief can be granted.” 14 A complaint challenged “by a Rule 12(b)(6) motion to dismiss does not need detailed 15 factual allegations” but requires plaintiff to provide actual grounds for relief. Bell Atlantic 16 Corp. v. Twombly, 550 U.S. 544, 555 (2007). Generally, a motion to dismiss pursuant to 17 Rule 12(b)(6) tests the “legal sufficiency of the claim.” Conservation Force v. Salazar, 646 18 F.3d 1240, 1241-42 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 19 2001)). In assessing the sufficiency of a complaint, all well-pleaded factual allegations 20 must be accepted as true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and “view[ed] . . . 21 in the light most favorable to the” nonmoving party. Lemmon v. Snap, Inc., 995 F.3d 1085, 22 1087 (9th Cir. 2021). 23 The Ninth Circuit has found that two principles apply when deciding whether a 24 complaint states a claim that can survive a 12(b)(6) motion. First, to be entitled to the 25 presumption of truth, the allegations in the complaint “may not simply recite the elements 26 of a cause of action, but must contain sufficient allegations of underlying facts to give fair 27 notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 28 F.3d 1202, 1216 (9th Cir. 2011). Second, so that it is not unfair to require the defendant 1 to be subjected to the expenses associated with discovery and continued litigation, the 2 factual allegations of the complaint, which are taken as true, “must plausibly suggest an 3 entitlement to relief.” Id. (emphasis added). 4 Dismissal is proper only where there is no cognizable legal theory or an “absence 5 of sufficient facts alleged to support a cognizable legal theory.” Davidson v. Kimberly-Clark 6 Corp., 889 F.3d 956, 965 (9th Cir. 2018) (quoting Navarro, 250 F.3d at 732). Additionally, 7 the court takes particular care when reviewing the pleadings of a pro se party, because a 8 less stringent standard applies to litigants not represented by counsel. Garmon v. Cnty. 9 of Los Angeles, 828 F.3d 837, 846 (9th Cir. 2016). 10 Having reviewed the motion to dismiss, (ECF No. 118), the Court agrees that much 11 of the Fourth Amended Complaint is an improper attempt to reallege claims that have 12 been dismissed by the Court on several occasions. Additionally, having reviewed the 13 Fourth Amended Complaint, the other allegations, which were dismissed with leave to 14 amend, still fail to state colorable claims for the same reasons outlined in the Court’s prior 15 screening order, (ECF No. 40). 16 First, like the SAC and the TAC, the Fourth Amended Complaint includes several 17 claims that are not properly joined in this action because they are insufficiently related to 18 the August 28, 2020 incident. Specifically, Harris seeks to assert the following claims 19 based on his transport between HDSP and ESP on May 19, 2021: (1) an Eighth 20 Amendment claim for deliberate indifference to inmate safety; (2) a Fourteenth 21 Amendment claim for denial of access to the courts; (3) an ADA claim1; and (4) a claim 22 alleging that Sisolak and Daniels breached the February 2021 settlement agreement 23 between the NDOC and the Department of Justice. (ECF No. 94.) Because these claims 24 were already dismissed without leave to amend at screening, (ECF No. 40), these claims 25 are again improper and are dismissed. 26 27 1 Harris’s motion for joinder, (ECF No. 103), relates to the ADA claim, which as the Court has already stated was dismissed without leave to amend based on improper 28 1 Next, Harris attempts to reallege his Eighth Amendment deliberate indifference to 2 medical needs claim, a failure to train and supervise claim, and a negligence claim. (See 3 ECF No. 94.) However, like his prior complaints, the Fourth Amended Complaint fails to 4 state colorable claims against defendants for the same reasons previously addressed on 5 screening. (Compare ECF No. 94, with ECF No. 41; See ECF No. 40.) 6 In reviewing the Fourth Amended Complaint, the only colorable claims plead are 7 the Eighth Amendment deliberate indifference to safety claim against Defendants Cole 8 and Boyd and the First Amendment retaliation claim against Defendants Dreesen and 9 Drummond. These are the same claims that were allowed to proceed on the TAC. 10 Accordingly, the Court will allow Harris to again proceed on these two claims, but no other 11 claims shall proceed based on Harris’s repeated failure to state colorable claims. 12 Accordingly, Defendants’ motion to dismiss, (ECF No. 118), is granted. 14 Next, before the Court are two motions for summary judgment. Specifically, as part 15 Defendants’ motion to dismiss, Defendant’s assert as motion for “early exhaustion motion 16 for summary judgment.” (ECF No. 118). Additionally, Harris also filed motion for summary 17 judgment. (ECF No. 128). 18 “Motions for summary judgment can be filed at any time but are often denied as 19 premature when submitted before the parties have had time to conduct at least some 20 discovery.” Smith v. Jones, No. 3:20-CV-0504-MMD-CLB, 2021 WL 5968455, *1 (D. Nev 21 Dec. 6, 2021) (citing Celotex Corp. v. Catreet, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 22 L.Ed.2d 265 (1986) (quotations omitted)). Although Rule 56 allows a party to file a motion 23 for summary judgment “at any time,” the rule also allows the court, as is just, to deny the 24 motion or order a continuance for the opposing party to pursue discovery. Fed. R. Civ. P. 25 56 (Advisory Committee's Notes (2010 Amendments Subdivision (b)). 26 The operative stipulated discovery plan and scheduling order (“DPSO”) was 27 entered in this case on May 6, 2024. (ECF No. 144.) The DPSO set the close of discovery 28 for November 11, 2024, with dispositive motions due on December 11, 2024. (Id.) Because 1 discovery has just recently commenced, the Court finds Defendants’ motion for summary 2 judgment, (ECF No. 118), and Plaintiff's motion for summary judgment, (ECF No. 128) are 3 both premature pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. Smith v. 4 Jones, 2021 WL 5968455 at *1 (“Motions for summary judgment can be filed at any time 5 but are often denied as premature when submitted before the parties have had time to 6 conduct at least some discovery.”). Accordingly, the motions for summary judgment, (ECF 7 Nos. 118, 128), are denied, with leave to refile once both parties have completed 8 discovery. 10 Finally, before the Court is Harris’s motion for settlement conference. (ECF No. 11 147.) Harris requests that the Court assist Harris “on further negotiation with Defendants 12 in order to achieve a reasonable resolution.” (Id.) The Court has already expended 13 resources to assist the parties to resolve this case through the IEM program—despite 14 Harris’s desire to be excluded from the mediation program. (See ECF Nos. 42, 72.) Given 15 the Court’s previous unsuccessful attempt to assist with settlement, the Court does not 16 believe it is in the interest of judicial economy to expend further resources for this purpose. 17 Accordingly, the motion, (ECF No. 147), is denied. This does not prevent the parties from 18 independently attempting to reach a settlement, as the parties are always free to negotiate 19 settlement without the Court’s intervention. 21 Consistent with the above, IT IS ORDERED that Harris’s motion for joinder, (ECF 22 No. 103), is DENIED as moot. 23 IT IS FURTHER ORDERED that Defendants’ motion to dismiss and early motion 24 for summary judgment, (ECF No. 118), is GRANTED in part and DENIED in part: 25 • Defendants’ motion to dismiss is GRANTED with respect to all claims, 26 except the following, which will be allowed to proceed: 27 28 1 o Eighth Amendment claim for deliberate indifference to inmate safety 2 arising from the August 28, 2020 incident against Defendants Cole 3 and Boyd. 4 o First Amendment retaliation claim against Defendants Dreesen and 5 Drummond. 6 e Defendants’ motion for summary judgment with respect to exhaustion is 7 DENIED as premature. 8 IT IS FURTHER ORDERED that Harris’s motion for summary judgment, (ECF No. 9 || 128), is DENIED as premature. 10 IT IS FURTHER ORDERED that Harris’s motion for settlement conference, (ECF 11 || No. 147), is DENIED. 42 || DATED: June 25, 2024 . 13 14 UNITED larasre JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28