Ware v. Sullivan

Opinion

1 AARON D. FORD Attorney General 2 DOUGLAS R. RANDS, Bar No. 3572 Senior Deputy Attorney General 3 State of Nevada 100 N. Carson Street 4 Carson City, NV 89701-4717 Tel: (775) 684-1150 5 E-mail: drands@ag.nv.gov 6 Attorneys for Interested Party, Nevada Department of 7 Corrections 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 ERIN WARE, Case No. 3:22-cv-00037-ART-CSD 12 Plaintiff, 13 vs. ORDER GRANTING MOTION TO VACATE EARLY 14 M.SULLIVAN, et al. MEDIATION CONFERENCE 15 Defendants. 16 17 Interested Party, the Nevada Department of Corrections, by and through counsel, Aaron D. 18 Ford, Attorney General of the State of Nevada, and Douglas R. Rands, Senior Deputy Attorney 19 General, hereby, hereby moves this Court for an order vacating the Early Mediation Hearing (EMC) 20 set for Tuesday November 22, 2022. This motion is based on the following Memorandum of Points 21 and Authorities, the attached declaration, and all papers and pleadings on file herein. 22 MEMORANDUM OF POINTS AND AUTHORITIES 23 This case is a pro se civil rights action pursuant to 42 U.S.C. §1983. ECF No. 9 at 1. 24 Plaintiff, Erin Ware (Plaintiff), is an inmate in the lawful custody of the Nevada Department of 25 Corrections (NDOC). Id. Plaintiff sues various Defendants and alleges they violated his rights 26 under the Eighth Amendment to the U.S. Constitution. Id. at 5. 27 An early mediation conference is set for Tuesday, November 22, 2022 at 8:30 am. (ECF No. 1 this matter. In the course of that conversation, it became clear that an EMC would not be beneficial 2 in this matter. The Interested party does not wish to have the matter excluded, per se. However, 3 after speaking with Plaintiff, it is clear that a mediation, at this time, would not be productive. 4 In the conversation with Counsel, a discussion was had regarding the settlement value of 5 this case. Plaintiff indicated, that in his experience, the Interested Party would not be willing to pay 6 what he feels the case is worth. He indicated that he would like to proceed to trial. He also 7 indicated that he was in the process of obtaining legal counsel, which would further complicate the 8 mediation process. 9 In this matter, there is an allegation that there was a delay in sending Plaintiff to the 10 hospital. Additionally, Plaintiff alleges that the infectious disease specialist at the hospital told him 11 that he needed to take two oral antibiotics daily for the rest of his life. Plaintiff claims that Dr. 12 Naughton has refused to prescribe these antibiotics, and medical employees Sullivan, Richard, and 13 Flores have denied Plaintiff’s grievances requesting oral antibiotics. It is the position of the 14 Defendants that they did not commit the constitutional violations claimed by Plaintiff. However, 15 more importantly, following the conversation between Counsel and Plaintiff, the mediation in this 16 case will not be fruitful. 17 During the call, Plaintiff would not give me a number for settlement. However, he said he 18 would not settle for less than he felt the case was worth. This is in reference to prior settlement 19 offers. In his grievance he asked for multi millions of dollars. There is no indication that the 20 NDOC will be willing to pay that amount at an early mediation conference. 21 Magistrate Judge Ferenbach, in Hill v Villatoro, 2021 WL 8016717 (D. Nev. 2021) stated as 22 follows: 23 Prisoner civil-rights cases under 42 U.S.C. § 1983 generally require significant time and resources to resolve. These costs are perhaps most acutely felt by 24 incarcerated plaintiffs who understandably want swift resolution for alleged constitutional violations but often lack the funds needed to retain an attorney to 25 prosecute their claims. In an effort minimize these costs, the U.S. District for the 26 District of Nevada created the Inmate Early Mediation Program, in which eligible § 1983 cases are sent to early mediation after the Court screens the 27 complaint. A party moving to exclude a case from the program must demonstrate 1 settlement offers, and plaintiffs have the right not to accept settlement offers. And when mediation does not appear likely to be productive and save resources, 9 the Court may choose to remove a case from the program and vacate any scheduled mediation conference. /d. at 1 3 4 The Court’s order in this matter states that any request to vacate the Early Mediation 5 || Conference must be filed no later than 21 days prior to the mediation. (ECF No. 8 at 10:17). 6 || Therefore, this motion 1s timely. 7 Based upon the conversation with Plaintiff, the Interested Party respectfully request this 8 || Court vacate the Early Mediation Conference set for Tuesday, November 22, 2022 at 8:30 am. The 9 || Defendants request that the Court use its inherent powers to control its docket by issuing an order 10 || vacating the early mediation conference. 11 DATED this 31st day of October, 2022. 12 AARON D. FORD Attorney General 13 14 By: /s/ Douglas R. Rands DOUGLAS R. RANDS, Bar No. 3572 15 Senior Deputy Attorney General 16 Attorneys for Defendants 17 18 IT IS SO ORDERED. 19 DATED: November 1, 2022. 20 ¢ 21 UNITED STATES MAQ#STRATE JUDGE 22 23 24 25 26 27 28