Cross v. Jaeger et al

Filing 211

ORDER overruling and denying 55 , 119 , 136 , 137 , 169 , 170 , 171 , 172 , 173 , 174 , and 187 Objections or Motions for District Judge to Reconsider Order. Signed by Judge Miranda M. Du on 8/19/15. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ANTHONY CROSS,

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Plaintiff,
v.

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RON JAEGER, et al.,
Defendant.

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Case No. 3:13-cv-00433-MMD-WGC

I.

ORDER
(Plaintiff’s Objection to Order Regarding
Plaintiff’s Motion to Unseal – dkt. no. 55;
Plaintiff’s Objections Regarding March 10,
2015, Minutes of Proceedings – dkt. no.
119; Plaintiff’s Objection to Minute Order
Regarding Plaintiff’s Motion to Extend
Copy Work Account – dkt. no. 136;
Plaintiff’s Objection to Order Denying
Plaintiff’s Motion to Compel – dkt. no. 137;
Plaintiff’s Objections Regarding May 22,
2015, Minutes of Proceedings – dkt. nos.
169, 170, 171, 172, 173, 174; Plaintiff’s
Objection to Order Regarding Plaintiff’s
Motion for Sanctions – dkt. no. 187)

SUMMARY

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Before the Court are Plaintiff’s objections to various orders entered by Magistrate

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Judge William G. Cobb. For the reasons discussed below, Plaintiff’s objections are

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overruled and denied.

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II.

BACKGROUND

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Plaintiff Anthony Cross is a pro se litigant proceeding in forma pauperis. He is an

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inmate in the custody of the Nevada Department of Corrections and has been at all

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relevant times.

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The Amended Complaint (“FAC”) asserts claims for violation of Plaintiff’s First

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Amendment and Fourteenth Amendment rights, as well as violations of administrative

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regulations under Nevada state law, against Sergeant Ron Jaeger and A.W.P./

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Grievance Coordinator Cheryl Burson. (Dkt. no. 7.) This Court’s screening order

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permitted Plaintiff to proceed only as to Plaintiff’s claims under the First Amendment and

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Article 1, Section 9 of the Nevada Constitution for alleged retaliation and/or interference

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with Plaintiff’s ability to pursue a disciplinary appeal and grievance. (Dkt. no. 6.)

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Defendant Jaeger filed an answer to the FAC. (Dkt. no. 26.) The FAC was dismissed as

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to Defendant Burson pursuant to Fed. R. Civ. P. 4(m). (Dkt. no. 146.)
Throughout the discovery process, Plaintiff has filed numerous objections to

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Judge Cobb’s orders. The Court will now address those objections.
III.

LEGAL STANDARD

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Magistrate judges are authorized to resolve pretrial matters subject to district

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court review under a “clearly erroneous or contrary to law” standard. 28 U.S.C. §

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636(b)(1)(A); see also Fed. R. Civ. P. 72(a); L.R. IB 3-1(a) (“A district judge may

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reconsider any pretrial matter referred to a magistrate judge in a civil or criminal case

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pursuant to LR IB 1-3, where it has been shown that the magistrate judge’s ruling is

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clearly erroneous or contrary to law.”)

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This standard of review is significantly deferential to the initial ruling. “A finding is

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clearly erroneous when although there is evidence to support it, the reviewing body on

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the entire evidence is left with the definite and firm conviction that a mistake has been

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committed.” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.

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Cal., 508 U.S. 602, 622 (1993) (internal quotation marks and citation omitted). The

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reviewing court “may not simply substitute its judgment for that of the deciding court.”

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Grimes v. City & Cty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 1991) (citation

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omitted).

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IV.

ANALYSIS

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A.

Motion to Unseal

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Plaintiff moved to unseal Burson’s last known address so that he could effectuate

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service by mail and Defendant Jaeger contested the motion, arguing that Burson’s
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address is confidential and that revealing the address of a former NDOC employee

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would pose a safety and security risk. (Dkt. no. 47.) Judge Cobb allowed Plaintiff to

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prepare service by mail and deliver the envelope to the warden’s office. (Id.) The

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warden’s office was directed to place Burson’s address on the envelope and place the

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envelope in U.S Mail. (Id.) This solution was intended to strike a balance between

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adhering to NDOC policies with regard to disclosing addresses of past and current

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employees but also permitting Plaintiff an opportunity to effectuate service by mail.

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Plaintiff’s objection states that he will comply with the order, but registers his

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dissatisfaction with it. (Dkt. no. 55.) He states that the warden should not be allowed to

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handle his mail because nothing is stopping the warden from throwing the envelope in

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the trash. (Id.)

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The Court cannot conclude that Judge Cobb committed clear error. Judge Cobb’s

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order attempts to balance security concerns with providing Plaintiff the ability to conduct

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service by mail. Plaintiff provides no basis for his belief that the warden would not

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comply with Judge Cobb’s order. Plaintiff’s objection (dkt. no. 55) is overruled and

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denied.

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B.

March 10, 2015, Status Conference

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On March 10, 2015, Judge Cobb held a telephonic discovery status conference to

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address several pending discovery motions. (Dkt. no. 116.) Judge Cobb addressed

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multiple sets of Plaintiff’s requests for admissions, requests for interrogatories, and

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requests for production of documents. Judge Cobb ordered Jaeger to file or supplement

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answers as to the majority of Plaintiff’s requests, but sustained some of Jaeger’s

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objections. (Dkt. no. 116.) Plaintiff’s objection addresses those requests for which Judge

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Cobb sustained Jaeger’s objections or did not require an answer. (Dkt. no. 136.) Jaeger

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filed a response. (Dkt. no. 139.)
Federal Rule of Civil Procedure 26(b) allows the discovery of any matter, not

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privileged, that is reasonably calculated to lead to the discovery of admissible evidence.

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Fed. R. Civ. P. 26(b); see Jackson v. Montgomery Ward & Co., 173 F.R.D. 524, 526 (D.

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Nev. 1997). Courts have broad discretion in controlling discovery. Id.

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Plaintiff’s objections ask the Court to substitute its judgment for Judge Cobb’s,

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which this Court cannot do. See Grimes, 951 F.2d at 241. The objections appear to re-

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litigate the arguments raised before Judge Cobb and voice Plaintiff’s apparent

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dissatisfaction with the way Judge Cobb ruled, but they fail to demonstrate clear error.

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As to Judge Cobb’s decision regarding interrogatory no. 12 of Plaintiff’s first set of

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interrogatories and request no. 18 of Plaintiff’s second set of requests for admissions,

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Plaintiff objects to Judge Cobb’s determination that Plaintiff’s dissatisfaction with

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Jaeger’s responses is a matter of impeachment for trial. (Dkt. no. 136.) Plaintiff’s

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concern appears to be that Jaeger is not telling the truth in these responses. If that is the

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case, then this Court agrees with Judge Cobb that Plaintiff is entitled to attempt to

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impeach at trial but further response from Jaeger is not necessarily warranted. Plaintiff

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will have a full opportunity at trial to argue to a factfinder that Jaeger is being untruthful.

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Plaintiff also filed an emergency motion to force Jaeger to address his alleged dishonest

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answer as to interrogatory no. 12 (dkt. no. 45) and Judge Cobb denied this motion (dkt.

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no. 116). Plaintiff asks this Court to reconsider the emergency motion if the Court

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reverses Judge Cobb’s order as to interrogatory no. 12. As the Court determines that

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Judge Cobb did not commit clear error as to interrogatory no. 12, Plaintiff’s objection as

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to his emergency motion is overruled and denied.

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As to Judge Cobb’s decision regarding interrogatory nos. 24 and 25 of Plaintiff’s

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first set of interrogatories, Plaintiff takes issue with Judge Cobb’s sustaining of Jaeger’s

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relevance objections. (Dkt. no. 136.) Plaintiff fails to indicate how these requests are

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relevant to Plaintiff’s claims, except to broadly state that they deal with past conduct,

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which can be considered in awarding punitive damages. Plaintiff’s objection fails to

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demonstrate that Judge Cobb committed clear error in sustaining these objections.

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Similarly, Plaintiff objects to Judge Cobb’s decision as to nos. 18, 19, and 20 of his

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second set of interrogatories, which also ask about past conduct that does not appear to
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relate to the incidents that form the basis of Plaintiff’s claims. The same is true with

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regard to Plaintiff’s objections as to Judge Cobb’s denial of Plaintiff’s request for

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production of a third party’s disciplinary appeal documents and a synopsis of past

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disciplinary proceedings. Judge Cobb determined such a request was burdensome and

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irrelevant. (Dkt. no. 130.) As with the other requests involving past incidents, Plaintiff fails

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to demonstrate that Judge Cobb’s determination as to relevance was clearly erroneous.

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Plaintiff only baldly proclaims that prior misconduct is relevant without demonstrating that

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the requested information and documents provide an important element of Plaintiff’s

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case.

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C.

Motion to Extend Copy Work Account

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Plaintiff filed a motion to extend copy work account seeking an extension of

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$100.00. (Dkt. no. 125.) Judge Cobb entered an order granting an extension of an

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additional $10.00 only. (Dkt. no. 130.) Plaintiff objects and argues the extension amount

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is too small by pointing to the cost of copies for two filings, one of which was $9.00 and

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the other was $17.20. (Dkt. no. 136.) Jaeger filed a reply. (Dkt. no. 139.)

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Inmates do not have a right to free and unlimited photocopying. See Johnson v.

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Moore, 948 F.2d 517, 521 (9th Cir. 1991). Judge Cobb determined that the $10.00

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extension, plus the $7.00 in Plaintiff’s account, would allow for approximately 170 copies

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and deemed that sufficient. (Dkt. no. 130.) Plaintiff is by no means restricted from

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requesting additional extensions. While Plaintiff is dissatisfied with the result, nothing in

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Plaintiff’s objection indicates clear error.

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D.

Motion to Compel

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Plaintiff filed a motion for an order to compel answers to his second set of

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requests for admissions from Jaeger. (Dkt. no. 95.) This filing related to an issue raised

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in Plaintiff’s objections as to his first set of interrogatories, which is whether Jaeger is

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being truthful in stating that he was a “shift supervisor” on the relevant date. (Dkt. no.

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131.) Judge Cobb found that Plaintiff and Defendant were engaged in a dispute over

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semantics irrelevant to Plaintiff’s claims. (Id.) That is, the question of whether Jaeger
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should more accurately describe himself as a supervisor of an “entire institution” or a

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“mere unit supervisor” is irrelevant because Jaeger's responses have already indicated

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that he was a shift supervisor on the relevant date and had the authority to respond or

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address Plaintiff’s grievance, which is all that is relevant to Plaintiff’s claim that Jaeger

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interfered with his grievance. (Id.) Judge Cobb also noted that Jaeger provided NDOC

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documents defining what a shift supervisor is and explaining his or her responsibilities.

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Judge Cobb further noted that Jaeger stated that he does not recall Plaintiff filing an

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emergency grievance on the relevant date. (Id.)

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Plaintiff’s objection argues that Jaeger was not the shift supervisor and it was

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therefore not his obligation to answer Plaintiff’s emergency grievance. (Dkt. no. 137.)

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The Court agrees with Judge Cobb that Plaintiff’s request has been sufficiently

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addressed. It is clear that Plaintiff does not like the response provided by Jaeger but

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Plaintiff has failed to demonstrate that Judge Cobb committed clear error in determining

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that the response was sufficient. Jaeger has addressed the issue as it pertains to

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Plaintiff’s claims. The purpose of discovery is to allow parties to obtain discoverable

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information, not to argue with the opposing party’s discovery responses. Plaintiff can

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attempt to demonstrate at trial that Jaeger is not being truthful if he so chooses.

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E.

May 22, 2015, Motion Hearing

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On May 22, 2015, Judge Cobb held a telephonic hearing to address several

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pending motions, including discovery motions. (Dkt. no. 168.) Plaintiff filed several

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objections relating to matters resolved at this hearing. (Dkt. nos. 169, 170, 171, 172,

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173, 174.) Jaeger filed a response. (Dkt. no. 179.)

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With respect to Judge Cobb’s decision to deny Plaintiff’s motion to compel in part

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as to some of the second set of requests for document production, Plaintiff’s objection

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again argues that Jaeger did not have the authority to address Plaintiff’s emergency

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grievance on the date in question. (Dkt. no. 169.) Plaintiff points out that he seeks more

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documents relating to this point but fails to present an argument as to why he believes

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Judge Cobb committed clear error in denying these requests. Instead, Plaintiff declares
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that Judge Cobb does not want Plaintiff to make this point regarding Jaeger’s authority

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and is therefore blocking evidence related to it. Judge Cobb’s actions on May 22, 2015,

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appear to be reasonable in attempting to manage this issue, at one point directing

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Jaeger to respond as to whether there are any documents available that identify him as

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the “shift supervisor.” (Dkt. no. 168.) Similarly Plaintiff objects to Judge Cobb’s decisions

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as to a separate set of requests for interrogatories that focus on Jaeger’s status as a

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shift supervisor. (Dkt. no. 174.) Plaintiff’s objection states that he argued against Judge

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Cobb deeming certain responses satisfactory and Judge Cobb asked Jaeger for a

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document demonstrating that he was shift supervisor on the relevant date. (Id.) Plaintiff

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therefore believes that Judge Cobb determined the shift supervisor authority issue to be

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“relevant” and consequently Plaintiff’s motions to compel as to requests related to this

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issue should have been granted. Plaintiff fails to demonstrate clear error. There is no

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indication that Judge Cobb determined that new evidence made some of Plaintiff’s

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denied requests relevant again. As noted previously, Judge Cobb did find Jaeger’s

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response that he was “shift supervisor” on the relevant date to be relevant to Plaintiff’s

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claims. (See dkt. no. 131.) The requested document seeks confirmation on this point.

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Plaintiff objects to Judge Cobb’s denial of his request for a court-appointed

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investigator. (Dkt. no. 170.) That request was denied because Judge Cobb found the

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Court does not have the authority to appoint an investigator. (Dkt. no. 168.) Plaintiff’s

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objection provides no authority to the contrary.

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Plaintiff raises several objections as to Judge Cobb’s denial in part of Plaintiff’s

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motions to compel answers to requests for admissions and answers to interrogatories.

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(Dkt. no. 171.) With regard to request for admission no. 14, Judge Cobb found the

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response unsatisfactory so Plaintiff’s objection is misplaced as to that request. (Dkt. no.

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168.) As to the remaining requests, Plaintiff’s objection only points out that he argued to

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Judge Cobb that he felt the responses were not satisfactory. (Dkt. no. 171.) This line of

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argument asks this Court to substitute its judgment for Judge Cobb’s, which it will not do.

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Plaintiff objects to Judge Cobb’s denial of his motion for appointment of counsel.

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(Dkt. no. 172.) Generally, a person has no right to counsel in civil actions. See Storseth

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v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). However, the Court is able to request

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an attorney for a plaintiff proceeding in forma pauperis. 28 U.S.C. § 1915(e)(1). The

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Court may only request counsel in exceptional circumstances. Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991). In order to determine whether exceptional

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circumstances exist, the Court must consider “‘the likelihood of success on the merits’”

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as well as the ability of the plaintiff to articulate his arguments “‘in light of the complexity

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of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)

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(citation omitted). Judge Cobb found that the requirements were not met in this case and

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Plaintiff has sufficiently demonstrated his ability to articulate his claims. (Dkt. no. 168.)

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Plaintiff also objects to his related request for institutional transfer, which Judge Cobb

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denied based on a finding that the Court does not have the authority to transfer Plaintiff.

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(Dkt. no. 168.) Plaintiff’s objection as to both of these matters focuses only on Judge

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Cobb’s alleged refusal to allow Plaintiff to access information relevant to his claims. (Dkt.

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no. 172.) Plaintiff has thus not presented any exceptional circumstances that warrant the

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appointment of counsel, apart from his dissatisfaction with Judge Cobb’s decisions.

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Further, Plaintiff provides no explanation for why his current confinement prevents him

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from being able to carry out discovery or how the situation would be improved through

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transfer.

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Plaintiff objects to Judge Cobb’s denial of his request that depositions be

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conducted and defendant incur all costs. (Dkt. no. 173.) Judge Cobb found that Plaintiff

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was entitled to conduct depositions but did not perceive a basis for cost shifting. (Dkt. no.

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168.) Judge Cobb determined that it would be the obligation of Plaintiff to pay for the

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costs of deposition. (Id.) “[T]he expenditure of public funds [on behalf of an indigent

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litigant] is proper only when authorized by Congress.” Tedder v. Odol, 890 F.2d 210, 211

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(9th Cir. 1989) (quoting United States v. MacCollom, 426 U.S. 317, 321 (1976). The 9th

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Circuit has held that 28 U.S.C. § 1915 does not authorize waiver of payments or fees of
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expenses for certain trial proceedings. Id. at 211 (citing Johnson v Hubbard, 698 F.2d

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286, 289 (6th Cir. 1983), cert. denied, 464 U.S. 917 (1983) (court in dicta referred to

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transcripts as part of trial proceedings that the “constitution does not require a court, or in

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practical terms, the federal government, to pay for at the request of the indigent party.”)

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This Court has found that waiver of transcript fees is not available to an indigent party.

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Ellis v. Benedetti, Case No. 308-cv-00657-MMD-WGC (D.Nev. June 8, 2015) (denying

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motion for production of transcripts at government’s expense). “A party proceeding in

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forma pauperis is generally initially responsible for payment of discovery costs, including

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the costs of depositions, such as fees of court reporters for reporting and transcripts.”

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Shallowhorn v. United States (IRS), 1:07-cv-1856-OWW-SMS, 2008 WL 2875353, at *2

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(E.D. Cal. July 23, 2008) (citing Wright v. United States, 948 F. Supp. 61, 61-62 (M.D.

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Fla. 1996) (collecting cases)). The in forma pauperis statute also does not waive

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payment of fees or expenses for witnesses. Dixon v. Yist, 990 F.2d 478, 480 (9th Cir.

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1993) (citation omitted). Plaintiff cites to Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993),

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which found that “even if § 1915 does not authorize the courts to order the provision of

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copies of deposition transcripts to an indigent civil litigant at government expense, it was

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within the equitable powers of the district court to order the defendants to pay for

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deposition transcripts for [pro se plaintiff] as a condition for taking the depositions.” Even

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accepting that as true, Plaintiff has not demonstrated circumstances that warrant such

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an exercise of the Court’s equitable powers. Plaintiff’s objection only argues that

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deposition of certain witnesses is important. Judge Cobb indeed determined that Plaintiff

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was entitled to conduct depositions but the Court agrees with Judge Cobb that Plaintiff

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has provided no basis for cost shifting.

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Plaintiff’s objections do not demonstrate that Judge Cobb’s decisions during the
May 22, 2015, hearing were clearly erroneous or contrary to law.

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F.

Motion for Sanctions

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Plaintiff objects to the Magistrate Judge’s decision to deny his motion to sanction

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Jaeger for not retaining Plaintiff’s emergency grievance or entering the grievance into
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the NDOC’s NOTIS computer system pursuant to NDOC’s procedures. (Dkt. no. 187.)

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The Magistrate Judge found that Plaintiff failed to meet his burden of establishing

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spoliation. (Dkt. no. 181.) In particular, the Magistrate Judge determined that while

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Jaeger failed to comply with NDOC’s procedures by not entering the grievance into

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NOTIS, there was no evidence that Jaeger acted willfully or in bad faith to destroy

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evidence. (Id. at 2.) The Magistrate Judge further found that Plaintiff was not prejudiced

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by Jaeger’s conduct because Plaintiff has a copy of the grievance and its authenticity

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has been verified by Defendant. (Id. at 2-3.) In his objection, Plaintiff continues to raise

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concerns about Defendant’s challenge to the authenticity of the grievance which would

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prejudice him. (Dkt. no. 187 at 5.) Defendant’s response reaffirmed that he will not

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challenge the authenticity of the grievance and he will be precluded from asserting an

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authenticity objection at trial. (Dkt. no. 191 at 2.) Whether Defendant’s claim of a lack of

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recollection as to the basis for the grievance, as Plaintiff suggests Defendant has done

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(dkt. no. 187 at 3), is credible is an issue entirely unrelated to the authenticity of the

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grievance.

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erroneous or contrary to law.

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V.

Plaintiff fails to show that Magistrate Judge Cobb’s decision is clearly

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion or reconsideration as they do not affect

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the outcome of this Order.

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It is therefore ordered that Plaintiff’s Objections or Motions for District Judge to

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Reconsider Order (dkt. nos. 55, 119, 136, 137, 169, 170, 171, 172, 173, 174, 187) are

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overruled and denied.

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DATED THIS 19th day of August 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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