Vontress v. State of Nevada

Opinion

* * *

GEORGE L. VONTRESS, Case No. 2:18-cv-1746-RFB-BNW

Plaintiff, ORDER v.

STATE OF NEVADA, et al.,

Defendants.

Presently before the court are plaintiff George Vontress’s motions to compel (ECF No. 111), extend copying rights (ECF No. 117), extend discovery (ECF No. 118), substitute defendant’s true name (ECF No. 124), for leave to effect service of process (ECF No. 125), and a motion to compel (ECF No. 129). I. Background. Vontress is an inmate in the custody of the Nevada Department of Corrections (“NDOC”). (ECF No. 1-1.) He initiated this matter with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. (Id.) Vontress alleges that defendants violated his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. (Id.) His complaint survived screening and a motion to dismiss (ECF No. 34 and 127), and it remains the operative complaint in this matter. (ECF No. 35.) Nevada’s Office of the Attorney General accepted service on behalf of defendants Frank Dreeson, James Dzurenda, Dwight Neven, and Dr. Rene Pena (the “NDOC defendants”). (ECF No. 60.) The Attorney General declined to accept service on behalf of defendant Jo Gentry and, instead, filed his address under seal. (ECF No. 61.) Defendants Damien Henninger, T. Thomas, C. Fuller, Rachael Williams, and CoreCivic (the “CoreCivic defendants”) appeared through counsel on October 15, 2019. (ECF No. 134.) Defendant D. Marr has not been served and he has not otherwise submitted to this Court’s jurisdiction. (ECF No. 79.)1 The Court entered a scheduling order on May 29, 2019. (ECF No. 81.) Less than one week later, the CoreCivic defendants moved to stay discovery. (ECF No. 86.) On June 17, 2019, the district judge granted the CoreCivic defendants’ motion and stayed all discovery, except for jurisdictional discovery, until the district judge could resolve the CoreCivic defendants’ then- pending motion to dismiss. (ECF No. 97.) The stay on discovery was lifted on September 28, 2019, when the district judge granted in part and denied in part the CoreCivic defendants’ motion to dismiss. (ECF No. 127.)2 Four of Vontress’s motions are unopposed. Vontress filed his motion to compel on July 29, 2019, to extend copy work on August 28, 2019, and to substitute defendant’s true name and effect service of process on September 20, 2019. (ECF No. 111, 117, 124, and 125.) Defendants oppose Vontress’s two remaining motions. Vontress filed his motion to extend discovery on August 28, 2019, and the CoreCivic defendants filed a response on September 11, 2019. (ECF Nos. 118 and 119.) The NDOC defendants joined the CoreCivic defendants’ response, and Vontress filed his reply on September 20, 2019. (ECF Nos. 120 and 123.) On October 9, 2019, Vontress filed his motion for leave to file a motion to compel. (ECF No. 129.) The NDOC defendants responded on October 23, 2019, and Vontress filed his reply on November 12, 2019. (ECF Nos. 137 and 142.)

1 Marr has made special limited appearances through counsel, mostly pursuant to court order. (ECF No. 41 and 56.) 2 Although the CoreCivic defendants are the only parties to have moved for the discovery stay, the language in the district judge’s order encompasses a stay as to all parties. The NDOC defendants seemingly agree because they opposed Vontress’s motion for an extension of discovery by joining in the CoreCivic defendants’ argument that an extension was unnecessary in light of the Court’s discovery stay. (ECF No. 120; ECF No. 119 1:22–1:25.) Further, the Court recognizes that in the district judge’s order resolving the CoreCivic defendants’ motion to dismiss, the district judge “denied” as moot the CoreCivic defendants’ motion for a stay given the resolution of the motion to dismiss. Nevertheless, the record is clear that the district judge did previously grant the stay of discovery. (ECF No. 127 and 97.) Thus, the discovery stay remained II. Discussion. A. Motion to compel (ECF No. 111) and for leave to file motion to compel (ECF No. 129). The Court will consider Vontress’s motion to compel and motion for leave together because they seek the same relief and relate to the same discovery requests. Further, pro se filings, including motion papers, must be liberally construed. Newman v. Ventura Cnty., No. CV 09-4160-JVS (PLA), 2011 WL 1630405, at *4 n.3 (C.D. Cal. Mar. 15, 2011) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)). Vontress seeks to compel the NDOC defendants to provide thirteen categories of items that he alleges are necessary to litigate his claims. (ECF No. 111 at 1.) Vontress asserts that the NDOC defendants have ignored both of his good-faith requests for these documents. (Id.) Vontress made his requests via mail on or around July 6 and July 28, 2019. (ECF No. 129-1 at 1.) Conversely, the NDOC defendants argue that Vontress’s motion for leave should be denied because it is untimely under the Court’s scheduling order. (ECF No. 137 at 2.) Alternatively, the NDOC defendants argue that the Court has previously denied another of Vontress’s motions to compel, and that the motion for leave does not offer any new information or argument. (Id. at 3.) A motion to compel discovery is appropriate only once the moving party has attempted— in good faith and without the court’s intervention—to resolve any dispute about the adequacy of discovery responses. FED. R. CIV. P. 37(a); LR 26-7(b). The motion “must set forth in full the text of the discovery originally sought and any response to it” and it must include “a declaration setting forth the details and results of the meet-and-confer conference[.]” LR 26-7(b)–(c). The meet-and-confer process typically requires a face-to-face meeting or telephonic conference, but an incarcerated pro se litigant is permitted to meet and confer “through written communication.” LR IA 1-3(f). The Court will deny Vontress’s motions because his discovery requests were improper in light of the Court’s discovery stay. The stay took place between June 17 and September 28, jurisdictional discovery from the stay, but it does not appear to the Court—and Vontress does not assert—that Vontress’s requests fall into that exception. The Court will not compel the NDOC defendants to comply with a discovery request that Vontress made in violation of the district judge’s order staying discovery. If Vontress still desires the requested documents from the NDOC defendants, he must propound his requests in accordance within the discovery parameters set by the district judge. Therefore, the Court will deny Vontress’s motion to compel and his motion for leave to file a motion to compel. B. Scheduling order and motion to extend discovery (ECF No. 118). Discovery in this case is governed “by the entry of an order establishing a briefing schedule and other appropriate matters.” LR 16-1(c)(3); see also LR 16-1(b). To that end, trial courts enjoy broad authority to control discovery. Little v. City of Seattle, 863 F.2d 681, 685 (9th Cir. 1988). Here, discovery was open for less than three weeks before the district judge issued a discovery stay. (ECF No. 81 and 97.) Although the stay was lifted in September 2019, no new scheduling order was entered and the parties have been without a discovery schedule since that time. Therefore, the Court finds it appropriate to impose a new scheduling order, which it will issue immediately following this order. Vontress moved to extend the time for discovery. (ECF No. 118.) He argued that the extension was necessary because he had difficulty receiving mail while being transferred from an Arizona correctional facility to the NDOC and he required more time to address the NDOC defendants’ deficient discovery responses. (Id. at 1.) Both the CoreCivic defendants and the NDOC defendants argued that at the time that Vontress filed his motion, a discovery extension was unnecessary because the discovery stay was in place. (ECF No. 119 at 1; ECF No. 120.) Vontress replied that the discovery stay applied only to the CoreCivic defendants and not the NDOC defendants. (ECF No. 123 at 1.) The Court agrees with defendants. Vontress’s motion for a discovery extension was improper because the discovery stay remained in place. Additionally, as discussed above, the district judge’s discovery stay was not limited to the CoreCivic defendants. However, because discovery as moot. Vontress is instructed to consult the forthcoming scheduling order to learn the new discovery deadlines. C. Motion to substitute defendant’s true name (ECF No. 124). Vontress moves to “substitute defendant Lt. John Doe with his true identity.” (ECF No. 124 at 1.) Vontress sued Lt. John Doe in his individual and official capacities. (ECF No. 35 at 5.) The district judge screened Vontress’s three claims against Lt. John Doe and held that those claims were cognizable and could proceed once Vontress learned Lt. John Doe’s real name. (ECF No. 34 at 9:14–9:23, 11:1–11:8, 13:12–13:20). Now, Vontress desires to substitute Lt. John Doe with “Edward Provencal.” Generally, a plaintiff may amend his complaint once “as a matter of course” within twenty-one days of serving it, or within twenty-one days after service of a responsive pleading or motion under Rule 12(b), (e), or (f). FED. R. CIV. P. 15(a)(1). Otherwise, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” FED. R. CIV. P. 15(a)(2). “The court should freely give leave when justice so requires.” Id.; Foman v. Davis, 371 U.S. 178, 182 (1962). This policy must be applied “with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003). “The court considers five factors in assessing the propriety of leave to amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011). The Court will grant Vontress’s motion. None of the five factors mandate denial of leave to amend. Discovery has not closed, the district judge has already found that Vontress’s claims against Lt. John Doe are cognizable, and this amendment would be Vontress’s first since filing his complaint. Further, the nascent stage of these proceedings means that Provencal will not be prejudiced by the amendment, and it does not appear that Vontress moves in bad faith or with undue delay. Therefore, Vontress may amend his complaint to substitute Edward Provencal for Lt. John Doe, but he must do so by March 9, 2020.

D. Motion to effect service of process (ECF No. 125). Vontress requests that the Court serve Provencal with a summons and complaint. When a party proceeds in forma pauperis, the Court “shall issue and serve all process.” 28 U.S.C. § 1915(d); Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990) (“a party proceeding in forma pauperis is entitled to have the summons and complaint served by the U.S. Marshal.”).3 Vontress proceeds in forma pauperis (ECF No. 50) and he is, therefore, entitled to the Court’s aid in issuing and serving all process. Based on the allegations in Vontress’s complaint, it appears to the Court that Provencal is a NDOC employee. Accordingly, the Court will order that if Vontress amends his complaint to substitute Provencal for Lt. John Doe, then the Attorney General must advise Vontress and the Court by March 23, 2020—two weeks following the deadline for Vontress to amend his complaint—whether it can identify Provencal as a NDOC employee and, if so, whether the Attorney General will accept service on Provencal’s behalf. If the Attorney General cannot accept service, the Attorney General shall file, under seal and without serving Vontress, Provencal’s last known address. And if Provencal’s last known address is a P.O. box, the Attorney General shall attempt to obtain Provencal’s last-known physical address. Finally, the Court will order that if the Attorney General advises the Court that his office will not accept service on behalf of Provencal, then Vontress must timely file a new motion for service of process. Service upon Provencal must be complete within 90 days after Vontress amends his complaint. See FED. R. CIV. P. 4(m). E. Motion to extend copying rights (ECF No. 117). Vontress moves the Court to order the NDOC to extend Vontress’s copywork limit. Vontress asserts that under NDOC Administrative Regulation (“AR”) 722, he has accrued the maximum allowable indebtedness for legal copywork. (ECF No. 117 at 1.) Vontress argues that

3 Section 1915(d) dovetails with Rule 4, which provides that upon the request of a plaintiff authorized to proceed in forma pauperis, the Court “must” order “that service be made by a United States marshal or he requires “a reasonable allowance” of copywork to effect service of process and to retain copies of his own filings. (Id. at 2.)4 Defendants do not oppose Vontress’s motion. Vontress is an indigent litigant, as demonstrated by his application to proceed in forma pauperis, which this Court granted. (ECF No. 50 at 1.) Under NDOC AR 722.01(7)(E) (2011), an inmate’s maximum indebtedness for copywork is $100.00. Vontress has reached this limit, likely because of the extensive motion practice between the parties. This matter, however, has not advanced beyond discovery. Inmates do not have a right to free, unlimited photocopying. Johnson v. Moore, 948 F.2d 517, 521 (9th Cir. 1991). But “[l]itigation necessarily requires some means of accurate duplication” and it is “needlessly draconian” to require inmates to copy all documents by hand. Gluth v. Kangas, 951 F.2d 1504, 1510 (9th Cir. 1991) (citing Johnson v. Parke, 642 F.2d 377, 380 (10th Cir. 1981)). This is especially true here because Vontress is litigating his claims against multiple parties represented by multiple teams of attorneys. Therefore, the Court will grant Vontress’s motion to extend his copywork rights. The extension, however, is not open ended. Vontress’s photocopying rights are limited to copies necessary to amend his complaint, “file motions, serve opponents, and maintain a copy for [plaintiff’s] records in this litigation alone.” Rowell v. Giannoue, No. 2:07-cv-01169-RCJ-RJJ, 2010 WL 1856076, at *1 (D. Nev. May 6, 2010). III. Conclusion. IT IS THEREFORE ORDERED that Vontress’s motion to compel (ECF No. 111) is DENIED without prejudice. IT IS FURTHER ORDERED that Vontress’s motion for leave to file a motion to compel (ECF No. 129) is DENIED without prejudice. IT IS FURTHER ORDERED that Vontress’s motion to extend discovery (ECF No. 118) is DENIED as moot. 4 Vontress erroneously contends that he requires an allowance of copywork to litigate his IT IS FURTHER ORDERED that Vontress’s motion to substitute defendant’s true name CECF No. 124) is GRANTED. Vontress must file his amended complaint by March 9, 2020. IT IS FURTHER ORDERED that Vontress’s motion for service of process (ECF No. 125) is DENIED without prejudice. IT IS FURTHER ORDERED that if Vontress amends his complaint to substitute Lt. John Doe for Edward Provencal, the Attorney General must advise Vontress and the Court by March 23, 2020 whether the Office of the Attorney General can identify Provencal as a NDOC employee and, if they can identify him, whether the Attorney General will accept service on Provencal’s behalf. If the Attorney General will not accept service, the Attorney General shall file, under seal and without serving Vontress, Provencal’s last-known address. If Provencal’s last-known address isa P.O. box, the Attorney General shall attempt to obtain Provencal’s last-known physical address. IT IS FURTHER ORDERED that if the Attorney General advises Vontress and the Court that it will not accept service on behalf of Provencal, Vontress must timely file a new motion for service of process. Service upon Provencal must be complete within 90 days after Vontress amends his complaint. IT IS FURTHER ORDERED that Vontress’s motion to extend copywork (ECF No. 117) is GRANTED. The Nevada Department of Corrections shall allow Vontress the copywork necessary to amend his complaint, file motions, serve opponents, and maintain one copy of his filings for his records for this litigation alone. DATED: February 25, 2020.

54 UNITED STATES MAGISTRATE JUDGE