Pertgen v. Baca ( 2024 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 WES JOSEPH PERTGEN, Case No. 3:19-cv-00534-MMD-CSD 7 Plaintiff, ORDER v. 8 ISIDRO BACA, et al.,1 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Wes Joseph Pertgen, who is an inmate in the custody of the Nevada 13 Department of Corrections, brings this action under 42 U.S.C. § 1983 against Defendants 14 Curtis Kerner and Lisa Walsh. (ECF No. 25.) Before the Court are Plaintiff’s objections 15 under LR IB 3-1 (ECF Nos. 130, 139) to United States Magistrate Judge Craig S. Denney’s 16 orders (ECF Nos. 123, 133) denying Plaintiff’s motion to receive and have possession of 17 his medical records (ECF No. 114) and motion to compel (ECF No. 115).2 As explained 18 below, because the Court finds that Judge Denney did not clearly err in deciding the 19 motions, the Court will overrule Plaintiff’s objections. 20 II. DISCUSSION 21 Plaintiff filed two objections to Judge Denney’s orders under LR IB 3-1. (ECF Nos. 22 130, 139.) “A district judge may reconsider any pretrial matter referred to a magistrate 23 judge in a civil or criminal case pursuant to LR IB 1-3, where it has been shown that the 24 magistrate judge’s ruling is clearly erroneous or contrary to law.” LR IB 3-1(a). “[R]eview 25 under the clearly erroneous standard is significantly deferential, requiring a definite and 26 27 1The only remaining Defendants are Curtis Kerner and Lisa Walsh. 28 2Defendants did not file responses to Plaintiff’s objections. 2 Chauffers, Warehousemen & Helpers, 124 F.3d 999, 1014 (9th Cir. 1997) (citation 3 omitted). “The reviewing court may not simply substitute its judgment for that of the 4 deciding court.” Grimes v. City & Cnty. of S.F., 951 F.2d 236, 241 (9th Cir. 1991) (citation 5 omitted). The Court addresses each objection in turn under this clear error standard. 6 A. Objection to Magistrate Judge Order on Motion to Receive and Have Possession of Medical Records (ECF No. 130) 7 8 As an initial matter, because Defendants did not oppose Plaintiff’s motion for leave 9 to file a late objection to the magistrate judge order denying Plaintiff’s motion for medical 10 records, the Court grants the motion for leave to file a late objection (ECF No. 132) as 11 unopposed and will consider this objection (ECF No. 130). See LR 7-2(d) (“The failure of 12 an opposing party to file points and authorities in response to any motion, except a motion 13 under Fed. R. Civ. P. 56 or a motion for attorney’s fees, constitutes a consent to the 14 granting of the motion.”). 15 Plaintiff objects to Judge Denney’s order (ECF No. 123) denying Plaintiff’s motion 16 “to receive and have possession of his medical records” (ECF No. 114). (ECF No. 130.)3 17 Judge Denney denied the request because Plaintiff can simply kite to review the records, 18 Administrative Regulation (“AR”) 639 (revised on July 27, 2021) “prohibits inmates from 19 possessing medical records on their person, in their cell, or on the yard,” and Plaintiff did 20 not make a showing of extraordinary circumstances warranting a court order allowing him 21 to possess the medical records. (ECF No. 123 at 1.) 22 In his objection, Plaintiff argues that AR 639 is unconstitutional as applied because 23 it violates his First Amendment rights to petition the Court for redress, Fourteenth 24 Amendment due process rights, and Fourth Amendment rights, as he cannot research 25 and prepare his case without having access to his medical records, and the medical 26 records are Plaintiff’s personal property, photocopies of which he had lawfully purchased. 27 28 3Defendants did not file a response to the objection. 2 arguments regarding his First and Fourteenth Amendment rights. (ECF No. 114 at 3; ECF 3 No. 121 at 2.) Judge Denney implicitly rejected those arguments in his order denying the 4 motion. The Court is similarly not persuaded by Plaintiff’s arguments, particularly where 5 Plaintiff appears to be able to kite to review and thus access his medical records even if 6 he cannot retain them in his possession. (See ECF No. 71-2 at 5 (“Offenders may request 7 to review their medical records” under AR 693.03(2)).) To the extent Plaintiff asserts that 8 he was not allowed to review his medical records for unclear reasons (ECF No. 130 at 5), 9 that is ultimately separate from the alleged violations underlying this case, and Plaintiff’s 10 options are to engage with any available grievance procedures. 11 The Court therefore finds that Plaintiff has not met the high burden of showing that 12 Judge Denney’s order was clearly erroneous or contrary to law and overrules Plaintiff’s 13 objection (ECF No. 130). 14 B. Objection to Magistrate Judge Order on Motion to Compel Discovery (ECF No. 139) 15 16 Plaintiff objects to Judge Denney’s order (ECF No. 133) denying Plaintiff’s motion 17 to compel discovery (ECF No. 115). (ECF No. 139.)4 Judge Denney denied the motion 18 because it was untimely, did not comply with Local Rule 26-6 or the Court’s scheduling 19 order, and in any event, did not seek information relevant to the claims proceeding in the 20 case. (ECF No. 133 at 2-5.) 21 In his objection, as to untimeliness and noncompliance, Plaintiff argues that he has 22 acted diligently and in good faith and asked the Court many times to waive or suspend 23 application of the Local Rules under LR IA 1-4 given his pro se status. (ECF No. 139 at 24 9.) LR IA 1-4 states that “[t]he court may sua sponte or on motion change, dispense with, 25 or waive any of these rules if the interests of justice so require.” LR IA 1-4 is discretionary, 26 27 28 4Defendants did not file a response to the objection. 2 comply. 3 Moreover, while it is true that pro se pleadings—such as a complaint—are held to 4 less stringent standards than formal pleadings drafted by lawyers, see Haines v. Kerner, 5 404 U.S. 519, 520 (1972), pro se parties nevertheless must follow the same procedural 6 rules as other litigants, see Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986); 7 Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“Although we construe pleadings liberally 8 in their favor, pro se litigants are bound by the rules of procedure.”). As Judge Denney 9 found (ECF No. 133 at 3-4) and the Court agrees, Plaintiff filed this motion to compel long 10 after the discovery motions cutoff set forth in the relevant scheduling order, and Plaintiff 11 did not provide the full text of the pertinent discovery requests and any responses as 12 required by LR 26-6 and the scheduling order. Plaintiff—even as a pro se party—is still 13 bound by court orders and the Local Rules. 14 Accordingly, Judge Denney did not clearly err in denying Plaintiff’s motion to compel 15 as untimely or alternatively for failure to comply with LR 26-6 or the scheduling order.5 The 16 Court therefore overrules Plaintiff’s objection (ECF No. 139). 17 III. CONCLUSION 18 The Court notes that the parties made several arguments and cited to several cases 19 not discussed above. The Court has reviewed these arguments and cases and determines 20 that they do not warrant discussion as they do not affect the outcome of the issues before 21 the Court. 22 It is therefore ordered that Plaintiff’s motion for leave to file a late objection (ECF 23 No. 132) is granted. 24 25 26 27 5As the Court finds no clear error in denying the motion to compel based on untimeliness and noncompliance with court orders and Local Rules, the Court need not— 28 and does not—analyze Judge Denney’s additional, alternative basis for denying the motion based on lack of relevance. 1 It is further ordered that Plaintiff's objection under LR IB 3-1 to the magistrate judge 2 || order denying Plaintiff's motion to receive and have possession of his medical records 3 || (ECF No. 130) is overruled. 4 It is further ordered that Plaintiff's objection under LR IB 3-1 to the magistrate judge 5 || order denying Plaintiff's motion to compel (ECF No. 139) is overruled. 6 DATED THIS 14'" Day of June 2024. 8 we MIRANDA M. DU 9 CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28