Klein v. Flamm ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 PAUL SCOTT KLEIN, Case No. 3:23-cv-00337-ART-CSD 4 Plaintiff, ORDER 5 v. 6 MICHAEL FLAMM, et al., 7 Defendants. 8 9 This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. § 10 1983 by a state prisoner. Plaintiff has submitted an application to proceed in forma 11 pauperis. (ECF No. 1). Based on the financial information provided, the Court finds that 12 Plaintiff is unable to prepay the full filing fee in this matter. 13 The Court entered a screening order on December 20, 2023. (ECF No. 3). A 14 follow-up order imposed a 90-day stay and the Court entered a subsequent order in which 15 the parties were assigned to mediation by a court-appointed mediator. (ECF Nos. 8, 10). 16 The Office of the Attorney General has filed a status report indicating that settlement has 17 not been reached and informing the Court of its intent to proceed with this action. (ECF 18 No. 15). 19 Plaintiff also filed a motion to withdraw his motion to dismiss Defendant Jose 20 Garcia. (ECF No. 12). The motion is granted. The Court notes that it had not taken any 21 previous action on the notice/correction to dismiss Garcia (ECF No. 6). Garcia remains 22 a defendant in this action. 23 Plaintiff also files a motion to file a supplemental complaint and attaches the 24 proposed supplemental complaint. (ECF Nos. 13, 13-1). Pursuant to Federal Rule of 25 Civil Procedure 15(d), “[o]n motion and reasonable notice, the court may, on just terms, 26 permit a party to serve a supplemental pleading setting out any transaction, occurrence, 27 or event that happened after the date of the pleading to be supplemented.” The Supreme 28 Court has held that Rule 15(d) “plainly permits supplemental amendments to cover events 1 happening after suit, and it follows, of course, that persons participating in these new 2 events may be added if necessary. Such amendments are well within the basic aim of the 3 rules to make pleadings a means to achieve an orderly and fair administration of 4 justice.” Griffin v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218, 227 (1964). “While 5 leave to permit supplemental pleading is ‘favored,’. . . it cannot be used to introduce a 6 ‘separate, distinct and new cause of action.’” Planned Parenthood of S. Arizona v. Neely, 7 130 F.3d 400, 402 (9th Cir. 1997). 8 The Court denies the motion for leave to file a supplemental complaint. (ECF No. 9 13). Plaintiff initiated the instant action on July 10, 2023. (See ECF No. 1). Plaintiff’s 10 supplemental complaint addresses events that took place between May 31, 2022, through 11 August 30, 2022. (See ECF No. 13-1 at 4). As such, the supplemental complaint is 12 improper because it is not attempting to set out any transaction, occurrence, or event that 13 happened after Plaintiff submitted his initial complaint. 14 For the foregoing reasons, IT IS ORDERED that: 15 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is 16 GRANTED. Plaintiff shall not be required to pay an initial installment of the filing fee. In 17 the event that this action is dismissed, the full filing fee must still be paid pursuant to 28 18 U.S.C. § 1915(b)(2). 19 2. The movant herein is permitted to maintain this action to conclusion without 20 the necessity of prepayment of any additional fees or costs or the giving of security 21 therefor. 22 3. Pursuant to 28 U.S.C. § 1915, the Nevada Department of Corrections will 23 forward payments from the account of Paul Scott Klein, #30918 to the Clerk of the United 24 States District Court, District of Nevada, 20% of the preceding month's deposits (in 25 months that the account exceeds $10.00) until the full $350 filing fee has been paid for 26 this action. The Clerk of the Court will send a copy of this order to the Finance Division 27 of the Clerk’s Office. The Clerk will send a copy of this order to the attention of Chief of 28 1 Inmate Services for the Nevada Department of Corrections at 2 formapauperis@doc.nv.gov. 3 4. The Clerk of the Court shall electronically SERVE a copy of this order and 4 a copy of Plaintiff’s complaint (ECF No. 4) on the Office of the Attorney General of the 5 State of Nevada by adding the Attorney General of the State of Nevada to the docket 6 sheet. This does not indicate acceptance of service. 7 5. Service must be perfected within ninety (90) days from the date of this order 8 pursuant to Fed. R. Civ. P. 4(m). 9 6. Subject to the findings of the screening and follow-up orders (ECF Nos. 3, 10 8), within twenty-one (21) days of the date of entry of this order, the Attorney General’s 11 Office shall file a notice advising the Court and Plaintiff of: (a) the names of the defendants 12 for whom it accepts service; (b) the names of the defendants for whom it does not accept 13 service, and (c) the names of the defendants for whom it is filing the last-known-address 14 information under seal. As to any of the named defendants for whom the Attorney 15 General’s Office cannot accept service, the Office shall file, under seal, but shall not serve 16 the inmate Plaintiff the last known address(es) of those defendant(s) for whom it has such 17 information. If the last known address of the defendant(s) is a post office box, the Attorney 18 General's Office shall attempt to obtain and provide the last known physical address(es). 19 7. If service cannot be accepted for any of the named defendant(s), Plaintiff 20 shall file a motion identifying the unserved defendant(s), requesting issuance of a 21 summons, and specifying a full name and address for the defendant(s). For the 22 defendant(s) as to which the Attorney General has not provided last-known-address 23 information, Plaintiff shall provide the full name and address for the defendant(s). 24 8. If the Attorney General accepts service of process for any named 25 defendant(s), such defendant(s) shall file and serve an answer or other response to the 26 complaint (ECF No. 4) within sixty (60) days from the date of this order. 27 9. Plaintiff shall serve upon defendant(s) or, if an appearance has been 28 entered by counsel, upon their attorney(s), a copy of every pleading, motion or other 4|| document submitted for consideration by the Court. If Plaintiff electronically files a 2\|| document with the Court’s electronic-filing system, no certificate of service is required. Fed. R. Civ. P. 5(d)(1)(B); Nev. Loc. R. IC 4-1(b); Nev. Loc. R. 5-1. However, if Plaintiff 4|| mails the document to the Court, Plaintiff shall include with the original document 5|| submitted for filing a certificate stating the date that a true and correct copy of the 6|| document was mailed to the defendants or counsel for the defendants. If counsel has 7\|| entered a notice of appearance, Plaintiff shall direct service to the individual attorney named in the notice of appearance, at the physical or electronic address stated therein. g|} The Court may disregard any document received by a district judge or magistrate judge 10|| which has not been filed with the Clerk, and any document received by a district judge, 41|| magistrate judge, or the Clerk which fails to include a certificate showing proper service 42|| when required. 13 10. ‘This case is no longer stayed. 14 11. | The motion to withdraw motion to dismiss Defendant Jose Garcia (ECF No. 15|| 12) is granted. Defendant Garcia remains a defendant in this case. 16 12. The motion for leave to file a supplemental complaint (ECF No. 13) is denied. 18 19 DATED THIS _2nd__ day of May 2024. UNITED STATES } RATE JUDGE 22 23 24 25 26 27 28