Cross v. Jaeger et al

Filing 242

ORDER granting in part and denying in part 239 Motion as specified herein. Signed by Magistrate Judge William G. Cobb on 10/15/2015. (Copies have been distributed pursuant to the NEF - DRM) Modified on 10/16/2015 to correct file date (DRM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY CROSS,

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Plaintiff,
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vs.
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RON JAEGER, et al.,
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Defendants.
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______________________________________)

3:13-cv-00433-MMD-WGC
ORDER
Re: ECF No. 239

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Before the court is Plaintiff’s Motion Requesting Defendant to Produce Exhibits “Q” and “R”

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of Plaintiff’s Motion for Summary Judgment. (ECF No. 239.)1 The motion seeks to have Defendant’s

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counsel produce two sets of documents that pertain to Plaintiff’s motion for summary judgment (ECF

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No. 222), i.e.,Plaintiff’s Exhibit Q, “Training Documents of Defendant Ron Jaeger, Emp. #04051" and

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Plaintiff’s Exhibit R, O.P. [Operational Procedure] 403 - Institutional Post Orders, ESP.” (Id.)

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As to Exhibit Q, Training Documents, Plaintiff states that while he was allowed access to

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Defendant Jaeger’s training documents, he has not been provided a copy of these documents and thus

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cannot submit them to the court for evaluation under Plaintiff’s motion for summary judgment. (ECF

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No. 239 at 2.) In that regard, this court’s order of July 23, 2015, noted that counsel for Defendant Jaeger

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stated that Defendant Jaeger’s training records were “provided to the Warden’s Office for review.” (ECF

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No. 192 at 2, 3.) It does not appear that Plaintiff has access to these documents outside of the Warden’s

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Office.

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As to Exhibit R, Ely State Prison Operational Procedure 403, Plaintiff submits documentation
that reflects he requested but was denied access to OP 403. (ECF No. 239 at 4, 5.)
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Refers to court’s docket number.

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DISCUSSION

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The court perceives that Exhibit Q has a bearing on Plaintiff’s motion for summary judgment.

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Because Plaintiff does not have possession of these documents, it seems appropriate for Defendant to

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duplicate and submit them to the court. Plaintiff’s motion is granted as to Exhibit Q. If Defendant

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deems the information in the training documents to be sensitive or confidential, the submission of

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Exhibit Q should be accompanied by a motion to seal.2

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The court has a more difficult time recognizing the relevance of Exhibit R to Plaintiff’s motion

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for summary judgment. Exhibit R is described as “O.P. 403 – Institutional Post Orders, (ESP).” (ECF

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No. 222 at 27.) “ESP” refers to Ely State Prison where Plaintiff is now confined. However, Plaintiff’s

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constitutional claims arose while Plaintiff was confined at Southern Desert Correctional Center (SDCC),

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not Ely State Prison (ESP). (ECF Nos. 4, 6.) Although Exhibit R is identified as one of Plaintiff’s

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numerous exhibits pertaining to his motion for summary judgment, as best as the court can discern, this

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exhibit is not discussed in Plaintiff’s memorandum of points and authorities accompanying Plaintiff’s

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motion. The only reference to Exhibit R which the court can locate appears in Paragraph 7 of Plaintiff’s

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Affidavit. (ECF No. 222 at 123.) The affidavit purports to quote language in Exhibit R, but possibly also

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from a document referred to as “NDOC 0162.”

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Defendant’s response to Plaintiff’s motion for summary judgment states that Exhibit F – SDCC

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Operational Procedure 740 “outlined how emergency grievances were handled and resolved at SDCC.”

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(ECF No. 234 at 3.) SDCC Associate Warden Minor Adams submitted in an affidavit that emergency

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grievances are processed at SDCC in accordance with O.P. 740. Exhibit K to Defendant’s response, the

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declaration of ESP Associate Warden Harold Byrne, states that the procedure for processing emergency

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grievances differs from ESP to SDCC. (ECF No. 234 at 13; Exhibit K.)

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Therefore, the court fails to discern the relevance of Exhibit R since it is an operational procedure

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of ESP, not SDCC – where the events giving rise to this litigation took place. Plaintiff’s motion, in this

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respect is denied without prejudice. If Plaintiff is able to establish the relevancy of the ESP O.P. 403

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Nevertheless, if the Defendant objects to this procedure, the court will entertain Defendant’s objection and
reconsider this component of this Order.

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in a motion for reconsideration, the court will re-address this issue.
Plaintiff’s motion (ECF No. 239) is granted in part and denied in part as outlined herein.

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IT IS SO ORDERED.

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DATED: October 15, 2015.

_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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