Cross v. Jaeger et al

Filing 253

ORDER granting Plaintiff's 250 Motion for Reconsideration; directing Defendant to file documents under seal and to make item available for Plaintiff's review at ESP (see order for details). Signed by Magistrate Judge William G. Cobb on 10/28/2015. (Copies have been distributed pursuant to the NEF - KR)

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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. 250

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Before the court is Plaintiff’s Motion for Reconsideration of this Court’s Order Re: 242. (ECF

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No. 250.)1 In this court’s order of October 15, 2015, this court granted Plaintiff’s request to have

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Defendant Jaeger submit his training/employment records as Exhibit Q to Plaintiff’s motion for

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summary judgment. (ECF No. 242.)

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However, the court denied Plaintiff’s request to have an Operational Procedure from Ely State

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Prison (ESP) submitted to the court as Exhibit R. The court reasoned that because the events giving rise

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to Plaintiff’s action occurred at Southern Desert Correctional Center (SDCC), Operational Procedures

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from ESP would not be relevant. (Id., at 2-3.)

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It appears that Plaintiff’s argument is that the operational procedures at ESP are likely similar

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to those at SDCC. The court disagrees. The declaration of ESP Associate Warden Harold M. Byrne

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represents the procedure for emergency grievances differs from ESP to SDCC. (ECF No. 234 at 13;

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Exhibit K; ECF 242 at 2.)

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The court also does not concur with Plaintiff’s conclusions that the policies are similar or even

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the same from institution to institution. If Plaintiff argues his rights were violated by reason of Defendant
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Refers to court’s docket number.

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failing to follow procedures for processing of emergency grievances, he should either refer to those

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procedures that pertain to all institutions – such as Administrative Regulations (ARs) – or those

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regulations specific to one institution – such as Operational Procedures (OPs) pertaining to SDCC.

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Reliance on an operational procedure at another institution is not controlling.

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Plaintiff states, without citation to the record, that “Plaintiff was blocked during the discovery

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from obtaining relevant SDCC Post Orders pursuant to AR 401.” (ECF No. 250 at 2.) The issue here is

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an operational procedure, not a post order or administrative regulation.

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Notwithstanding the foregoing, the court has now noted that the declaration of SDCC Associate

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Warden Minor Adams states that “SDCC Operational Procedure 740.03(7) outlines how emergency

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grievances are resolved at SDCC.” (ECF No. 234-7 at 3, ¶ 8.) Inasmuch as the procedure for resolving

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at emergency grievances at SDCC is central to this case, and because Associate Warden Adams’

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declaration relies on this operational procedure, the document ought to be before the court.

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Plaintiff’s motion for reconsideration (ECF No. 250) is GRANTED. Defendant shall file under

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seal the SDCC Operational Procedure 740.03(7) which was in effect on September 30, 2011 marked as

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Plaintiff’s Exhibit R referencing Plaintiff’s Motion for Summary Judgment (ECF No.222) and this Order

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and shall make SDCC Operational Procedure 740.03(7) available for Plaintiff’s review at ESP.

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IT IS SO ORDERED.

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DATED: October 28, 2015.

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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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