Cox v. Smith et al

Filing 35

ORDERED Ds shall file specified affidavits by 5/10/2012; and P's 24 , 27 , 30 Motions are DENIED. Signed by Magistrate Judge William G. Cobb on 4/30/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

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STEVE MICHAEL COX,

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Plaintiff,
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GREGORY W. SMITH, et. al.

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Defendants.

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3:11-cv-00539-ECR (WGC)
ORDER

I. BACKGROUND

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At all relevant times, Plaintiff Steve Michael Cox (Plaintiff) was an inmate in custody of

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the Nevada Department of Corrections (NDOC). (Pl.’s Am. Compl. (Doc. # 15) 1.)1 Plaintiff is

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currently incarcerated at Ely State Prison (ESP); however, the events giving rise to this action

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took place while Plaintiff was housed at Nevada State Prison (NSP). (Id.) Plaintiff, a pro se

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litigant, brings this action pursuant to 42 U.S.C. § 1983. (Id.) Defendants are McDaniel, Koehn,

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Cruse, Whittington, Nicholas, Bannister, Donaldson, Jacobs, Smith, Zappettini, Quentin,

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Habberfield, Skolnik, and Cox . (Screening Order (Doc. #17) at 6-8, 10 .)

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On screening, the court determined that Plaintiff states a colorable claim in Count II for

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violation of the Eighth Amendment against defendants McDaniel and Koehn in connection

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with the allegations that Plaintiff is unable to get to medical and dental appointments due to

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these defendants confiscation of his quad cane and denial of other assistance. (Doc. # 17 at 6-

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7.) The court also determined that Plaintiff states a colorable claim in Count V for violation of

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the Eighth Amendment with respect to defendants Cruse, Whittington, Nicholas, Bannister,

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Refers to court’s docket number.

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Donaldson, Jacobs, Smith, Zappettini, Quentin, Habberfield, Skolnik, and Cox. (Doc. # 17 at

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8.) In Count V, Plaintiff alleges that in March 2010, he began to vomit blood and have diarrhea

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from a meatless alternative diet, because someone put foreign particles in the food. (Id.)

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Plaintiff asserts that defendants Cruse, Whittington, and Nicholas refused to call for medical

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assistance, and defendants Bannister, Donaldson, Jacobs, Smith, Zappettini, Quentin,

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Habberfield, Skolnik, and Cox denied or ignored his requests for medical attention and

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investigation of food tampering. (Id.) Plaintiff was afraid to eat the food and drank only milk

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for a period of time, and lost twenty to thirty pounds, suffering from fatigue and hunger pains.

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(Id.)

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On December 15, 2011, Plaintiff filed a motion requesting the imposition of sanctions

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against ESP officials and the Attorney General’s Office. (Doc. # 24.) Plaintiff argues that ESP’s

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law library supervisor and Deputy Attorney General Hoppe should be sanctioned pursuant to

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Federal Rule of Civil Procedure 11 for refusing to comply with the court’s order set forth at Doc.

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# 17, providing him with a $5 copy work extension and additional legal supplies, including five

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sheets of paper, a pen, and an envelope. (Id. at 1.)

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Defendants respond that Rule 11 sanctions do not apply under these circumstances, and

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that consistent with the court’s order, Defendants credited Plaintiff’s account $5 for copy fees

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and will furnish Plaintiff with five sheets of paper, a pen, and an envelope for use in this case

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only. (Doc. # 26.) To that end, Defendants provide the declaration of Michelle Weyland,

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Management Analyst III with NDOC. (Doc. # 26-1.) Ms. Weyland reviewed Plaintiff’s inmate

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account, and confirms that he has been granted a $5 copy work extension in this case, and that

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he will be given access to five sheets of paper, a pen and an envelope. (Id.)

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On January 17, 2012, Plaintiff filed a second motion requesting that Rule 11 sanctions

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and contempt be imposed for disregarding the order in Doc. # 17 with respect to legal supplies.

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(Doc. # 27.)

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On February 9, 2012, Plaintiff filed yet another motion requesting the imposition of Rule

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11 sanctions in the amount of $270,000 against Defendants for failing to comply with the

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court’s orders in Doc. # 17. (Doc. # 30.)
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II. DISCUSSION

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Plaintiff is correct that the Screening Order did provide that NDOC shall credit Plaintiff

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$5 in copying fees and, if needed and upon Plaintiff’s request, five sheets of paper, a pen, and

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an envelope, for use in this case only. (See Doc. # 17 at 9:4-8.)

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Defendants are correct that sanctions under Rule 11 apply when a representation has

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been made to the court in a pleading, written motion or other paper. Fed. R. Civ. P. 11. Thus,

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Rule 11 does not govern this set of circumstances where Plaintiff alleges that Defendants

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disobeyed a court order by failing to provide him with legal supplies.

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While the court may utilize it’s contempt power and its inherent power to impose

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sanctions, the court finds the record here does not justify utilization of either of those remedies.

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After Plaintiff filed his initial motion for sanctions, Defendants filed a response and declaration

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indicating that Plaintiff was credited the $5 and provided with five sheets of paper, a pen and

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an envelope. Plaintiff did not file a response indicating he did not receive the items. Moreover,

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Plaintiff’s second and third motions for sanctions do not represent that he did not receive the

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items as represented. Instead, these motions merely reiterate the original request for

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sanctions.

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The court orders counsel for Defendants file appropriate affidavit(s) within TEN DAYS

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of the date of this order confirming that Plaintiff has been provided with the paper, pen and

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envelope that are the subject of his motions. Accordingly, Plaintiff’s motions (Docs. # 24, # 27

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and # 30) are DENIED. In the event it comes to light that these items have not been provided

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to Plaintiff, he may renew his motion.

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IT IS SO ORDERED.

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DATED: April 30, 2012
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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