Salazar v. Calderin

Filing 85

SUPPLEMENTARY ORDER re 43 , 52 , 64 , 65 , 68 Motions. See Order for details. Signed by Magistrate Judge Brenda Weksler on 2/16/2021. (Copies have been distributed pursuant to the NEF - MR)

Case 2:19-cv-01870-APG-BNW Document 85 Filed 02/16/21 Page 1 of 8

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Anthony Salazar,

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Case No. 2:19-cv-001870-APG-BNW
Plaintiff,
Supplementary Order re [43], [52], [64],
[65], and [68]

v.
Chaplain Calderin,

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Defendant.

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This matter came on for a February 8, 2021 hearing on plaintiff’s motions at ECF Nos. 43,

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52, 64, 65, and 68. ECF No. 81. During the hearing the Court resolved several discovery issues

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pertaining to various discovery requests that plaintiff served upon defendant. The Court ordered

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defendant Chaplain Calderin to provide a supplementary response to some but not all of these

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requests.

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Given the length of the Court’s oral ruling, and the inability of Salazar to access a

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recording of the February 8 hearing, the Court issues this supplementary order which sets forth

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the Court’s oral ruling on every individual discovery request at issue in plaintiff’s motions. This

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order does not modify, expand, or limit any ruling that this Court issued at the hearing. Further,

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this order is not comprehensive of every issue resolved or deadline imposed at the hearing. To

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the extent this supplementary order is inconsistent with the Court’s oral ruling, the oral ruling

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shall control.

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ECF No. 43:

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Request for Production No. 1. Salazar requested from Calderin a copy any “NDOC

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Inmate Request Form Doc-3012” between September 2017 through February 1, 2018, submitted

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by Salazar, pertaining to Salazar, directed to Calderin, related to Salazar’s access to and

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participation in religious activities, events, and functions at High Desert State Prison (“HDSP”).

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The Court overruled Calderin’s objections and ordered him to supplement his response.

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Request for Production No. 4. Salazar asked Calderin to produce “any attendee list that

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reflects the days plaintiff attended chapel, and any attendance.” The Court held that although

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Calderin does not himself keep an attendance list, his affidavit did not sufficiently explain

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whether this list is within his possession, custody, or control. Thus, the Court ordered that

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Calderin must investigate whether he can obtain this list on demand from the Nevada Department

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of Corrections (“NDOC”). If he is able to obtain this list on demand, he must produce it to

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Salazar.

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However, the Court also found that Salazar’s request was slightly overbroad. The only

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portion of this request that is relevant is information pertaining directly to Salazar. Salazar did

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not establish the relevance of the names of the other attendees. Therefore, this request was

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limited to information solely about Salazar’s attendance.

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ECF No. 52:

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Request for Interrogatory No. 10. Salazar asked Calderin to “provide any knowledge or

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fact you have . . . that relates to count 2 of the first amended civil rights complaint and the

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allegations set forth therein.” The Court found that this interrogatory was overbroad and unduly

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burdensome. An interrogatory “should consist of a brief, simple, direct, and unambiguous

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question, dealing with one point only.” Sattari v. Citi Mortg., 2010 WL 4782133, at *1 (D. Nev.

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Nov. 17, 2010). Salazar may modify this interrogatory and resubmit it to Calderin.

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ECF No. 65:

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Withdrawal of the admissions. The Court found that the matter contained in Salazar’s

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second set of Requests for Admissions was admitted on the 31st day after service. However, the

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Court construed Calderin’s response brief as a motion to withdraw admission under Rule 36(b) of

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the Federal Rules of Civil Procedure. The Court found that permitting withdrawal of the

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admissions would promote the presentation of the merits, that Salazar would not be prejudiced by

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the withdrawal, and that any prejudice wrought on Salazar could be ameliorated through an

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extension of the discovery schedule. Therefore, the Court ordered that Calderin’s admissions
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were withdrawn and that the response to Salazar’s second set of Requests for Admissions, which

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he served upon her on November 19, 2020, would control. Because those responses would

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control, Salazar is able to review the objections and—if she so chooses—move to overrule them

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after a sufficient meet and confer.

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Whether Calderin waived his objections to the second set of requests for interrogatories

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and requests for production of documents. The Court here declined to address whether Calderin

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waived his untimely objection to Salazar’s second set of requests for production of documents.

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Those untimely objections were addressed later in the Court’s oral ruling (and later in this

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supplementary order).

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Under Rule 6(b)(1) of the Federal Rules of Civil Procedure, the Court excused the

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untimeliness of Calderin’s objections to the second set of requests for interrogatories. The

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Court’s decision was based on its finding that the responses were untimely due to excusable

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neglect.1 Because the Court excused the untimeliness of Calderin’s objections, the Court

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analyzed each request for interrogatory to determine whether the objections were sustained or

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overruled.

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Request Interrogatory No. 11. Salazar asked Calderin to identify all parties who filed

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complaints against Calderin in the preceding 10 years “which relate to . . . or concern sexual

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orientation or religious discrimination, deprivation of religious rights, interference with religious

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practices, and falsification of official department records.” The Court found that the portion of

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the interrogatory pertaining to discrimination on the basis of sexual orientation was irrelevant

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because Salazar’s equal protection claim is based on her religious affiliation, not her sexual

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orientation.

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However, the Court found that the remainder of the interrogatory was relevant. The Court

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overruled Calderin’s objections as boilerplate and ordered Calderin to supplement his response to

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this interrogatory as stated herein.

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The Court expressly rejected Salazar’s contention that counsel acted in bad faith or that he had
perpetrated a fraud upon the Court, and it cautioned Salazar against using this language in the future.
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Request Interrogatory No. 12. Salazar asked Calderin to identify every cause of action

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asserted against him in the past 10 years by an NDOC inmate for alleged violations of the

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inmate’s constitutional rights. The Court noted that following an extensive search of relevant

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electronic databases, Calderin provided Salazar with a list of actions in which he was sued. The

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Court found that this response was sufficient and that any further production would be unduly

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burdensome. Therefore, no further supplementation by Calderin is required.

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Request Interrogatory No. 13. Salazar asked Calderin to identify the individuals

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responsible for creating and maintaining HDSP chapel attendance lists between May 12, 2017,

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through the present. The Court had already ordered Calderin to conduct an inquiry into whether

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he can obtain a chapel attendance list on demand. The Court therefore held that if Calderin is in

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fact able to obtain a chapel attendance list on demand, then he must produce it to Salazar and, to

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the extent possible, provide a supplementary response to Interrogatory No. 13.

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Request Interrogatory No. 14. Salazar asked Calderin to identify “every practice,

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procedure, [administrative regulation], [operating procedure], custom, usage, policy, agency

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protocol, regulation, and rule” that Calderin adhered to from May 12, 2017, to the present in

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adding and deleting inmates from all, each, and every religious chapel list at HDSP. The Court

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had already ordered Calderin to conduct an inquiry into whether he can obtain a chapel

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attendance list on demand. The Court therefore held that if Calderin is in fact able to obtain a

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chapel attendance list on demand, then he must produce it to Salazar and, to the extent possible,

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provide a supplementary response to Interrogatory No. 14.

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Request Interrogatory No. 15. Salazar asked Calderin to identify “every administrative

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personnel action and discipline” taken against Calderin in the preceding 10 years that involves

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and relates to the performance of his duties as chaplain for the NDOC. The Court found that this

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request was overbroad because it captured the universe of personnel action against Calderin,

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which means that the request was broad enough to produce information entirely irrelevant to

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Salazar’s claim. The Court ordered that no further response to Interrogatory No. 15 was required.

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Salazar’s second set of requests for production of documents. The Court found that
Calderin provided a nonresponse to Salazar’s motion as it pertained to compelling a
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supplementary response to her second set of requests for production of documents. Therefore, the

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Court held that Calderin waived most, but not all, of his objections.

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On the basis of good cause, the Court sua sponte modified the requests as set forth below.

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The Court directed Calderin to provide a privilege log to Salazar for any documents withheld on

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the basis of official government information privilege or on the basis of concerns for the safety

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and security of inmates, officers, employees, or other persons at the correctional institution.

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Salazar shall review the logs, meet and confer with counsel, and file any motions she deems

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appropriate.

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Request for Production No. 1. Salazar asked Calderin for every administrative

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regulation and operational procedure concerning the falsification of departmental records by staff.

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The Court found this request was irrelevant and ordered that Calderin need not supplement his

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response.

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Request for Production No. 2. Salazar asked Calderin for every grievance filed against

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Calderin for the past 10 years concerning sexual orientation or identity discrimination. The Court

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found this request was irrelevant and ordered that Calderin need not supplement his response.

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Request for Production No. 3. Salazar asked Calderin for every grievance filed against

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Calderin for the past 10 years concerning religious discrimination. The Court found that a 10-

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year period was overbroad. The Court limited the request to 3 years and ordered Calderin to

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supplement his response.

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Request for Production No. 4. Salazar asked Calderin for every grievance filed against

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Calderin for the past 10 years concerning a deprivation of an inmate’s religious rights. The Court

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found that a 10-year period was overbroad. The Court limited the request to 3 years and ordered

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Calderin to supplement his response.

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Request for Production No. 5. Salazar asked Calderin for every grievance field against

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Calderin for the past 10 years concerning Calderin’s interference with an inmate’s religious

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practices. The Court found that a 10-year period was overbroad. The Court limited the request to

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3 years and ordered Calderin to supplement his response.

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Request for Production No. 6. Salazar asked Calderin for every grievance filed against

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Calderin for the past 10 years concerning falsification of official documents and reports. The

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Court found that a 10-year period was overbroad. The Court limited the request to 3 years and

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ordered Calderin to supplement his response.

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Request for Production No. 7. Salazar asked Calderin for every grievance filed against

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Calderin regarding any misconduct associated with his duties as chaplain for the NDOC. The

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Court found that this request was far too overbroad and ordered that Calderin need not

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supplement his response.

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Request for Production No. 8. Salazar asked Calderin for every grievance filed against

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Calderin for the past 10 years concerning any topic listed in Requests for Production Numbers 2

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through 7. The Court found that this request was duplicative and ordered that Calderin need not

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supplement his response.

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Request for Production No. 9. Salazar asked Calderin for every investigative factual

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conclusion reached as the result of all investigations related to topics mentioned in Requests for

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Production Numbers 2 through 8. The Court founds that this request was duplicative, vague,

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ambiguous, and overbroad. The Court therefore ordered that Calderin need not supplement his

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response.

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Request for Production No. 10. Salazar asked Calderin for “each and every record

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retention schedule and policy of HDSP and NDOC which pertains to each and every document

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sought and identified in [Request for Production No. 1] and the instant production requests.” The

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Court found that this request was irrelevant and ordered that Calderin need not supplement his

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response.

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Request for Production No. 11. Salazar asked Calderin for every grievance filed by

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Salazar between May 2017 to the present concerning Salazar’s religious practices, rights, access,

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and accommodations. The Court ordered that Calderin shall supplement his response.

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Request for Production No. 12. Salazar asked Calderin for every “work attendance

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record” at HDSP from May 2017 through December 2017. The Court found that this request was

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irrelevant and overbroad and ordered that Calderin need not supplement his response.
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Request for Production No. 13. Salazar asked Calderin for every “call out Thelema

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attendance list from May 2017 through February 28, 2020.” The Court found this request was

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overbroad and duplicative, and it ordered that Calderin need not supplement his response.

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Request for Production No. 14. Salazar asked Calderin or every “HDPS chapel use

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schedule for the Thelema religious group between May 2017 through December 20, 2017.” The

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Court found that this request was irrelevant and ordered that Calderin need not supplement his

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response.

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Request for Production No. 14. Salazar asked Calderin for every “HDSP chapel use

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schedule for the Thelema religious group between May 1, 2017 and December 20, 2017.” The

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Court found that this request was irrelevant and ordered that Calderin need not supplement his

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response.

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Request for Production No. 15. Salazar asked Calderin for every “Nevada Offender

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Tracking Information System [] report which reflects plaintiff’s documented religion between

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May 12, 2017,” through the present. The Court ordered Calderin to supplement his response.

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ECF No. 64:

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The Court denied Salazar’s motion for an order to show cause. The Court found that

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counsel was negligent but had not acted in bad faith. The Court also found that Salazar was not

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prejudiced by Calderin’s belated responses to the third set of discovery requests. The Court

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further found that what little prejudice may have occurred could be ameliorated through an

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extension of the discovery schedule.

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Additionally, on the basis of good cause, the Court excused the untimeliness of Calderin’s

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responses to Salazar’s third set of discovery requests. Salazar may review Calderin’s objections

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to these requests, meet and confer with counsel, and file whatever motion she deems appropriate

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(though not on the basis of untimeliness).

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ECF No. 68:

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The Court granted Salazar’s motion to extend the scheduling order. Discovery expires on

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April 5, 2021; discovery motions are due April 26, 2021; dispositive motions are due May 10,

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2021; and the joint pretrial order is due June 9, 2021, unless there are pending dispositive motions
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pending, in which case the joint pretrial order is due 30 days after the final dispositive motion is

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resolved.

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DATED: February 16, 2021.

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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