Aubert v. Dzurenda

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA [3] THAD AUBERT, ) 4 ) Plaintiff, ) Case No.: 2:18-cv-01329-GMN-EJY [5] vs. ) 6 ) ORDER JAMES DZURENDA, et al., ) 7 ) Defendants. ) [8] ) [9] 10 Pending before the Court is pro se Plaintiff Thad Aubert’s (“Plaintiff”) 1 Objection, 11 (ECF No. 47), to the Order, (ECF No. 45), of the Honorable Magistrate Judge Elayna J. 12 Youchah. Defendants James Dzurenda, Brian Williams, Dwight Neven, and James Cox 13 (collectively “Defendants”) filed a Response, (ECF No. 50), and Plaintiff filed a Reply, (ECF 14 No. 51). 15 Also pending before the Court is Plaintiff’s Objection, (ECF No. 48), to Judge 16 Youchah’s Order, (ECF No. 46). Defendants filed a Response, (ECF No. 52), and Plaintiff 17 filed a Reply, (ECF No. 57). For the reasons discussed below, Plaintiff’s Objections are 18 OVERRULED. 19 I. LEGAL STANDARD 20 When reviewing the order of a magistrate judge, the order should only be set aside if the 21 order is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); LR IB 3-1(a); 28 U.S.C. 22 § 636(b)(1)(A); Laxalt v. McClatchy, 602 F. Supp. 214, 216 (D. Nev. 1985). A magistrate 23 judge’s order is “clearly erroneous” if the court has “a definite and firm conviction that a [24] 1 In light of Plaintiff’s status as a pro se litigant, the Court has liberally construed his filings, holding them to [25] standards less stringent than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). 1 mistake has been committed.” See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); 2 Burdick v. Comm’r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). “An order is contrary to law 3 when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” 4 UnitedHealth Grp., Inc. v. United Healthcare, Inc., No. 2:14-cv-00224-RCJ, 2014 WL 5 4635882, at *1 (D. Nev. Sept. 16, 2014). When reviewing the order, however, the magistrate 6 judge “is afforded broad discretion, which will be overruled only if abused.” Columbia 7 Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007). The district judge “may not 8 simply substitute [his or her] judgment” for that of the magistrate judge. Grimes v. City and 9 Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (citing United States v. BNS, Inc., 858 10 F.2d 456, 464 (9th Cir. 1988)). 11 II. DISCUSSION 12 A. Objection, (ECF No. 47) 13 Plaintiff objects to Judge Youchah’s Order, (ECF No. 45), denying without prejudice 14 Plaintiff’s Motion for Expert Witness, (ECF No. 41). Plaintiff complains Judge Youchah’s 15 Order only addressed the subjective prong of the deliberate indifference analysis, but Plaintiff 16 seeks an expert to evince the objective component of deliberate indifference. (Obj. at 2–3, ECF 17 No. 47). Upon review, Plaintiff’s underlying Motion for Expert Witness makes no mention of 18 the objective component of deliberate indifference. (See Mot. Expert Witness, ECF No. 41). 19 Therefore, in not addressing the objective component, Judge Youchah’s ruling was not clearly 20 erroneous or contrary to law. The Court therefore overrules Plaintiff’s objection. However, the 21 Court notes that Judge Youchah’s denial was without prejudice. Should Plaintiff elect to renew 22 his Motion for Expert Witness, Plaintiff must state with particularity the grounds for seeking 23 the order and the relief sought. See Fed. R. Civ. P. 7(b). 24 /// [25] 1 B. Objection, (ECF No. 48) 2 Plaintiff objects to Judge Youchah’s Order, (ECF No. 46), denying Plaintiff’s Motion, 3 (ECF No. 42), to Amend Screening Order, (ECF No. 6). Plaintiff’s Motion asked Judge 4 Youchah to Amend the Court’s Screening Order because it did not specify whether the 5 “Assistant Medical Director John/Jane Doe” survived as a defendant. (Mot. Am. Screening 6 Order at 1, ECF No. 42). Judge Youchah denied Plaintiff’s Motion as untimely under Rule 7 60(c). (Nov. 4, 2019 Order at 1, ECF No. 46). Plaintiff now argues that his Motion should have 8 been construed as a motion filed pursuant to Rule 60(a), which allows for the correction of a 9 “clerical mistake, or a mistake arising from oversight or omission whenever one is found” in an 10 order or other part of the record. Fed. R. Civ. P. 60(a) (emphasis added). Because Plaintiff did 11 not identify the appropriate rule in his Motion, Judge Youchah’s ruling based on Rule 60(c) 12 was not clearly erroneous or contrary to law. Accordingly, the Court overrules Plaintiff’s 13 Objection. 14 Notwithstanding the above, the Court’s Screening Order explained: “If the true identity 15 of any of the Doe Defendant(s) comes to light during discovery, Plaintiff may either move to 16 substitute the true names of Doe Defendant(s) or move to amend his complaint to assert claims 17 against the Doe Defendant(s) at that time.” (Screening Order at 4 n.2, ECF No. 6) (emphasis 18 added). In his Objection, Plaintiff does not mention whether the true identity of “Assistant 19 Medical Director John/Jane Doe” has come to light during discovery. However, in the event 20 Plaintiff has since ascertained said information, Plaintiff may file a motion to substitute or to 21 amend, consistent with the Court’s Screening Order. 22 /// 23 /// [25] 1 III. CONCLUSION 2 IT IS HEREBY ORDERED that Plaintiff Thad Aubert’s Objections, (ECF Nos. 47, 3 48), are OVERRULED. 4 DATED this _6___ day of October, 2020. [5] 6 ___________________________________ Gloria M. Navarro, District Judge [7] United States District Court