Owens v. Dzurenda

• Decision Date: 30 September 2022
• Docket Number: 2:19-cv-00126-RFB-BNW
• Parties: KESHONE OWENS, Plaintiff, v. JAMES DZURENDA, et al., Defendants.
• Court: U.S. District Court — District of Nevada

KESHONE OWENS, Plaintiff,
v.
JAMES DZURENDA, et al., Defendants.

No. 2:19-cv-00126-RFB-BNW

United States District Court, D. Nevada

September 30, 2022

ORDER

RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Before the court are three motions: Defendants' Motion to Stay the Proceeding, given a Pending Appeal (ECF No. 70); Plaintiff's Motion for Sanctions (ECF No. 77); and Defendants' Motion Objecting/Appealing the Order of a Magistrate Judge (ECF No. 85).

For the following reasons, the Court denies all three of these motions.

II. FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to the Court's March 2, 2020 Screening Order, this case was screened in accordance with 28 U.S.C. § 1915A(a). ECF No. 8. Plaintiff originally brought three claims: a Fourteenth Amendment Due Process claim, an Ex Post Facto Clause claim, and an Eighth Amendment Cruel and Unusual Punishment claim. The Screening Order only allowed Plaintiff's Ex Post Facto claim to proceed. Id. On March 3, 2020, Plaintiff's complaint was filed. ECF No. 9. On September 4, 2020, the parties participated in an Inmate Early Mediation Conference. ECF No. 19. A settlement was not reached.

On December 14, 2020, Parole Board Defendants and NDOC Defendants filed motions to

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dismiss the proceeding. ECF Nos. 29, 28. Briefing on these motions completed on February 1, 2021 and March 5, 2021, respectively.

On September 20, 2021, the Court held a hearing on Defendants' motions to dismiss. After the hearing, the Court issued a “Minutes of Proceedings” in which it issued a Minute Order in which it granted the Parole Board Defendants' Motion (ECF No. 29) and denied NDOC Defendants' Motion (ECF No. 28) without prejudice. ECF No. 45. The Court also lifted the Order staying Discovery (ECF No. 35), and required the parties to submit a joint proposed plan/scheduling order by October 4, 2021, and further granted Defense counsel leave to produce an “in camera” privilege log. Id. Plaintiff would then have until November 19, 2021 to file an amended Complaint with additional parties. Id. The Court's Order stated: “Defendants are directed to provide Plaintiff in initial disclosures or through other discovery prior to November 19, 2021, the names of any employees of NDOC who are or were specifically tasked with recalculating sentences after the Nevada Supreme Court's decision in Williams v. State of Nevada Dept of Corr., 402 P.3d 1260 (Nev. 2017). On September 27, 2021, Plaintiff moved for appointment of Counsel. ECF No. 47. Briefing on Plaintiff's Motion for appointment of Counsel closed on October 18, 2021.

On October 5, 2021, NDOC Defendants (“Defendants”) filed an Answer to Plaintiff's Complaint. ECF No. 50. On October 12, 2021, Defendants filed a document titled “Unopposed Motion and Scheduling Order and Discovery Plan Per Court Order of September 20, 2021 (ECF No. 45).” ECF No. 51, 52. On October 13, 2021, the Court granted what it believed to be an Unopposed Discovery Plan. ECF No. 54. That same day, Defendants corrected the filing by Notice, changing the first word in the title of its filing from “Unopposed” to “Proposed.” ECF No. 55.

On October 25, 2021, Plaintiff filed his Opposition to Defendants' Scheduling Order and Discovery Plan. ECF No. 57. On November 8, 2021, the Magistrate Judge granted Plaintiff's motion for leave to seek counsel and referred him to the Pro Bono Program. ECF No. 59. On November 8, 2021, the Magistrate Judge issued a Minute Order construing Plaintiff's Opposition as a Motion for Reconsideration. ECF No. 60. The Magistrate Judge denied the Motion for

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Reconsideration and clarified that Plaintiff would have until February 17, 2022 to “join other parties that have direct decision-making authority on how Plaintiff's credits shall be applied.” ECF No. 60.

On November 9, 2021, the Transcript of The Court's September 20, 2021 “Order on Motion to Dismiss, Motion Hearing held on 9/20/2021. . .” was uploaded to the docket. ECF No. 61. On November 29, 2021, Plaintiff filed a Motion to Compel and a Motion to Extend Time to Complete Discovery. ECF No. 62-63. On December 1, 2021, the Magistrate Judge set a hearing for January 26, 2021, on Plaintiff's Discovery related motions. ECF No. 64. On December 9, 2021, 30 days from the date the hearing transcript was uploaded and 80 days from the date of the Court's Order, Defendants filed a Notice of Appeal. ECF No. 66.

On December 13, 2021, Defendants filed a Motion to Stay the Case as there was a pending appeal at the Circuit. ECF No. 70. Briefing for this motion ended on January 8, 2022. On January 10, 2022, Plaintiff filed a Motion for Sanctions, on the grounds that Defendants' Notice of Appeal was untimely. ECF No. 77. Briefing for this motion ended on January 24, 2022. On January 31, 2022, Plaintiff filed a Motion to Compel. ECF No. 80. Briefing for this motion ended on February 2, 2022.

On February 10, 2022, the Magistrate Judge held a hearing on Plaintiff's two Motions to compel (ECF Nos. 62, 80) and his Motion to Extend Discovery Deadlines (ECF No. 63), the transcript of which served as the opinion and order of the Court. ECF No. 84. The Magistrate Judge granted Plaintiff's Motions to compel but stayed the order to allow Defendants to raise objections to the District Court Judge in light of the pending appeal and pending motion to stay the case. Id. The Magistrate Judge also granted Plaintiff's Motion to Extend but set timelines contingent on the District Court's ruling on dispositive motions. Id.

On February 24, 2022, Defendants' filed their Objection/Appeal of the Magistrate Court Judge's Order. ECF No. 85. Plaintiff filed no response or reply. On April 7, 2022, Plaintiff renewed his Motion for Appointment of Counsel. ECF No. 90. The Magistrate Judge denied Plaintiff's renewed Motion for Appointment of Counsel as moot, since his case was still referred to the Pro Bono Program. ECF No. 92.

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III. DEFENDANTS' MOTION TO STAY THE CASE PENDING APPEAL

A. Legal Standard

i. Motion for a Stay

A stay is “not a matter of right, even if irreparable injury might otherwise result.” Virginian Ry. Co. v. United States, 272 U.S. 658, 672, 47 S.Ct. 222, 71 L.Ed. 463 (1926). “It is instead ‘an exercise of judicial discretion,' and ‘the propriety of its issue is dependent upon the circumstances of the particular case.'” Nken v. Holder, 556 U.S. 418, 433 (2009) (internal citation marks omitted). The burden is on the moving party to demonstrate circumstances that justify an exercise of that discretion. Id. at 433-34.

In Nken, the Supreme Court set forth four factors that a Court must consider: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceed; and (4) where the public interest lies.” Id. at 434.

While establishing irreparable injury on its own does not guarantee a stay will be granted, a failure to establish irreparable injury requires the district court to deny the motion. See Leiva-Perez v. Holder, 640 F.3d 962, 965 (9th Cir. 2011). The district court is divested of its jurisdiction over the aspects of the case subject to proper appeal. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). But when a party seeks to appeal a non-appealable order, the district court is not divested of jurisdiction. Id. at 388-389. Furthermore, an appeal is frivolous if its presentation of the district court's...