Tipton v. Guice ( 2019 )

NAW ee OO DN Nw RAVE wr DUN NA abe hed te i aye a VI Ww 1 || AARON D. FORD ———- Attorney General FILED ~—— RECEIVED 2 || ROST C. OLSEN, Bar No. 14410 —— ENTERED ——— SERVED ON Deputy Attorney General COUNSEL/PARTIES OF RECORD 3 || State of Nevada Public Safety Division 4 || 100 N. Carson Street DEC 11 2019 Carson City, NV 89701-4717 5 Tel: (775) 684-1209 CLERK US DISTRICT COURT E-mail: rolsen@ag.nv.gov DISTRICT OF NEVADA 6 BY: . _ DEPUTY Attorneys for Defendant omen nr 7 || Morris Guice 8 9 UNITED STATES DISTRICT COURT 10 DISTRICT OF NEVADA 11 || DUANE TIPTON, Case No. 3:17-cv-00032-RCJ-CLB 12 Plaintiff, ORDER 13 Iv. DEFENDANT’S MOTION FOR RELIEF FROM ADMISSIONS AND EXTENSION 14 GUICE, et al., OF TIME TO RESPOND TO DISCOVERY 15 Defendants. 16 Defendant Morris Guice, by and through counsel, Aaron D. Ford, Attorney Genera 17 || of the State of Nevada, and Rost C. Olsen, Deputy Attorney General, files his Motion fo: 18 || Relief from Admissions and Extension of Time to Respond to Discovery. This Motion i 19 || supported by the following Memorandum of Points and Authorities, as well as all pleading: 20 || and papers on file in this matter. 21 MEMORANDUM OF POINTS AND AUTHORITIES 22 | I. RELEVANT FACTUAL SUMMARY 23 This is a prisoner civil rights action filed under 42 U.S.C. § 1983, brought by Duane 24 || Tipton #69967 (Plaintiff), against multiple Defendants for alleged events that took place 25 || while he was incarcerated by Nevada Department of Corrections (NDOC) and housed a 26 || High Desert State Prison (HDSP) in 2017. (ECF No. 6 at 1.) Pursuant to the Court’: 27 || Screening Order (ECF No. 5) on Plaintiffs Complaint (ECF No. 6) Plaintiff was allowed to 28 W/// WADE UVEUUUO SNEED YVUCUTTICI OU FHCU hvilg Faye cull 1 || proceed on one Eighth Amendment violation for failure to protect against □□□□□□□□□□□□□ 2 || Officer Morris Guice. 3 On October 2, 2019, the Attorney General’s Office received Plaintiffs First Request 4 || for Documents, First Set of Interrogatories to Defendants, and Request for Admissions. At 5 that time, Defendant Guice was absent from work on leave “for the majority of October anc 6 || November.” Ex. A. 7 Defendant was able to respond to the Request for Documents through Counsel or 8 || October 30, 2019. However, upon his return to work, Defendant Guice changed duty} 9 || stations; furthermore, this matter was recently reassigned to its third Deputy □□□□□□□□□ 10 || General (DAG) within the last four months due to a higher-than-usual amount of personne 11 || turnover within the Attorney General’s Office. The confluence of these events has led t 12 || difficulty in undersigned counsel’s office maintaining contact with Defendant Guice t 13 || procure his responses to the propounded discovery. 14 On November 15, 2019, Charles Odgers, the DAG previously assigned to this matter 15 || received a letter from Plaintiff dated November 13, 2019 detailing his concerns as t 16 || Defendant’s lack of response to his Interrogatories and Request for Admissions; Plaintif 17 || then set an arbitrary deadline of November 18, 2019, five days after the date of the letter 18 ||to respond. Ex. B. On November 26, 2019, DAG Odgers mailed a letter to Plaintif 19 || explaining Defendant’s prolonged absence from work and the Attorney General’s Office’ 20 inability to reach Defendant. Ex. A. DAG Odgers then requested a continuance unti 21 || December 15, 2019 to file responses to the Interrogatories and Request for Admissions. Id 22 || DAG Odgers also requested Plaintiff inform the Attorney General’s Office if the propose: 23 || continuance was not agreeable so that the Office could file a motion to extend respons 24 || time. Id. 25 However, also on November 26, 2019, Plaintiff filed his Motion to Compel Answers t 26 || Interrogatories and Admissions, without receiving or responding to the letter sent by DAC 27 || Odgers. ECF No. 47. 28 WADE GLEE OTN IO LL Ae NY VV 1]. ARGUMENT 2 Under Federal Rule of Civil Procedure 36, matters are deemed admitted if the 3 || responding party fails to serve a response within 30 days! of service of the requests fot 4 || admissions. See Fed. R. Civ. P. 36(a). Whether a responding party can withdraw or amenc 5 the admitted matters is within the discretion of the Court. See Conlon v. United States, 47¢ 6 || F.3d 616, 621 (9th Cir. 2007) Gnternal citations omitted). A two-prong test is employed ir 7 || deciding whether to allow relief from admissions: (1) whether upholding the admissions 8 || would practically eliminate any presentation of the merits of the case, and (2) whether the 9 || party relying on the deemed admissions has shown prejudice. See id. at 622. However, the 10 Court may also consider whether the party moving for relief from admissions has 11 || demonstrated good cause for the delay. See Friedman v. Live Nation Merchandise, Inc., 83: 12 |} F.3d 1180, 1185 (9th Cir. 2016) (citing Conlon, 474 F.3d at 625). 13 Here, Defendant was out of work on leave for the majority of the time period ir 14 || which he had to respond; this led to a breakdown in communication that precluded the 15 || Attorney General’s Office from being able to reach him. See Ex. A. Furthermore, due t 16 || personnel changes in the office, this matter has been recently reassigned to the □□□□□□□□□□□ 17 || DAG, who is the third DAG handling this matter in the last four months. The totality o 18 || these events give rise to good cause for Defendant’s delay in response to the □□□□□□□□□□□ 19 || discovery requests. See Friedman, 833 F.3d at 1185. 20 Accordingly, based upon the foregoing, Defendant moves this Court to grant him: 21 1. Relief from default admissions to the Request for Admissions propounded b; 22 Plaintiff; and 23 2. An extension of time until December 16, 2019 to respond to Plaintiffs Interrogatorie 24 and Request for Admissions. 25 |} /// 26 |) /// 27 /// 28 Three additional days are added for service by mail. See FED. R. CIv. P. 6(d). WAIG GV LETUVT ETERS UY LD MUELUITICII OU ON tered □□□ TUES 1 III. EXHIBITS 2 A. Letter to Plaintiff from DAG Odgers, dated November 26, 2019. 3 B. Letter to DAG Odgers from Plaintiff, dated November 18, 2019. 4 DATED this 10th day of December, 2019. 5 AARON D. FORD 6 Attorney General 7 By: /s/ Rost C. Olsen ROST C. OLSEN, Bar No. 14410 8 Deputy Attorney General 9 Attorneys for Defendant 10 11 12 is ; ORDERED 13 ‘S. MAGISTRATE JUDGE parep:|2IZOlD 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ADS SBE UNE ETN PO EMME I ea TAY VI 1 CERTIFICATE OF SERVICE I certify that I am an employee of the Office of the Attorney General, State o Nevada, and that on this 10th day of December, 2019, I caused to be served a copy of the ° foregoing, DEFENDANT’S MOTION FOR RELIEF FROM ADMISSIONS ANI ; EXTENSION OF TIME TO RESPOND TO DISCOVERY, by U.S. District Cour CM/ECF Electronic Filing to: 7 Duane Tipton, #69967 g || Care of LCC Law Librarian Lovelock Correctional Center 9 |) 1200 Prison Road Lovelock, NV 89419 10 Ieclawlibrary@doc.nv.gov 11 12 . 13 Cons i *. 4 RAL 14 An employee of the Office of the Attorney General 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A Letter to Plaintiff from DAG Odgers, dated — November 26, 2019. EXHIBIT A IAW Veh WV TAA WL RAVI We PMMA 2G AV LS raye avi & Loe WBS AN AARON D. FORD oy See Neopia Attorney General a eat , ys) i . eae) KYLE E.N. GEORGE Se eral Counect First Assistant Attorney General ~ CHRISTINE JONES BRADY STATE OF NEVADA See hak ered □□ Second Assisiant Attorney General OFFICE OF THE ATTORNEY GENERAL 100 North Carson Street Carson City, Nevada 89701 November 26, 2019 Duane Tipton #69967) Lovelock Correctional Center 1200 Prison Road Lovelock, NV 89419 Re: Tipton v. Guice: 3:°7-cv-00032-RCJ-CLB Dear Mr. Tipton: I am in receipt of your discovery requests to Mr. Guice and your letter dated November 13, 2019. Please apologize the tardiness of my response. Mr. Guice has been off work for the majority of October and November. I have been unable to reach him due to his absence. Please let this letter serve as my re- quest for a continuance to December 15, 2019 in which to file responses to your discovery requests. As you know, Mr. Guice must review and approve respons- es to your discovery requests. If this poses a problem, please advise and I will file the appropriate mo- tion in Court for an enlargement of time in which to respond to your discovery requests. Thank you in advance for your consideration and professionalism. C “2 A ) Charles H. Odgers Deputy Attorney General (775) 684-1261 codgers@ag.nv.gov Telephone: 775-684-1100 e Fax: 775-684-1108 « Web: ag.nv.gov « E-mail: aginfo@ag.nv.gov Twitter: @NevadaAG « Facebook: /NVAttorneyGeneral « YouTube: /NevadaAG EXHIBIT B Letter to DAG Odgers from Plaintiff, dated November 13, 2019. EXHIBIT B ee en NN NN Meme a NIN NEN ET SINAN NA ELAM AN AIM OMe oe file es - Chases... Odgers. Dea, Case No1 3:[1-cvom3a -RO)~cac TThags the Shaft seat be you!” Request. Be Whduassions and. Plas CES Fiosk Sek of Tinkesragdories bs. □□□□□□□□□□ lozen over cre Lhe 30daxs TD had given You... □ laws tec. As of Nove naloec ti Ah Sol 2. 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