Cross v. Jaeger et al

Filing 404

ORDER denying Plaintiff's ECF Nos. 316 , 321 , 322 , 323 , 324 , 325 , 326 , 327 , 348 , 350 , 352 , 353 , 378 , 380 , and 394 Motions; denying Plaintiff's ECF Nos. 346 , 376 Motions for Reconsideration; striking Plaintiff's ECF No. 385 Reply in Support of First Motion in Limine; granting Plaintiff's ECF No. 368 Motion to Withdraw First Motion in Limine, deeming withdrawn ECF No. 317 Motion in Limine; denying as moot Plaintiff's ECF No. 349 Motion for Leave to File Reply to First Motion in Limine. Signed by Judge Miranda M. Du on 5/22/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 ANTHONY CROSS, 9 Case No. 3:13-cv-00433-MMD-WGC Plaintiff, ORDER v. 10 RON JAEGER, et al., 11 Defendants. 12 13 After summary judgment proceedings, Plaintiff’s retaliation claims based on 14 Defendant’s refusal to give Plaintiff the Disciplinary Form III and Defendant’s handling of 15 the Emergency Grievance in violation of the First Amendment and Article 1, Section 9 of 16 the Nevada Constitution remain to be tried. (ECF No. 313.) This Order addresses 17 numerous motions pending before the Court.1 18 Plaintiff’s motion to withdraw his first motion in limine (ECF No 317) for failure to 19 comply with LR 16-3(a) is granted. (ECF No. 368.) Plaintiff’s first motion in limine (ECF 20 No. 317) is deemed withdrawn. Plaintiff’s motion for leave to file a reply to his first 21 motion in limine (ECF No. 349) is denied as moot. The Court will address the remaining motions. 22 23 I. MOTION FOR RECONSIDERATION – ECF No. 316 24 Plaintiff’s motion for reconsideration asks the Court to reconsider its decision to 25 grant summary judgment on Plaintiff’s access to court claims (ECF No. 313).2 (ECF No. 26 27 28 1The various motions relating to the Court’s order for Plaintiff to participate in a settlement conference will be addressed separately. 2The motion was docketed as a motion for reconsideration relating to ECF No. 314, but the text of the motion addresses ECF No. 313. 1 316.) A motion to reconsider must set forth “some valid reason why the court should 2 reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to 3 persuade the court to reverse its prior decision.” Frasure v. United States, 256 4 F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is 5 presented with newly discovered evidence, (2) committed clear error or the initial 6 decision was manifestly unjust, or (3) if there is an intervening change in controlling 7 law.” Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Plaintiff’s 8 motion shows that he disagrees with the Court’s reasoning, but such disagreement 9 alone is not enough to warrant reconsideration. Plaintiff’s motion (ECF No. 316) is 10 therefore denied. 11 II. ECF Nos. 321-326 12 Plaintiff asks the Court to direct his presence and that of certain inmate 13 witnesses to appear at trial. The Court will direct that Plaintiff be transported to court for 14 trial once trial is set. The Court will set a pre-trial status conference to address the 15 witness presentation, whether in person or by video conference, once trial is set. 16 Accordingly, Plaintiff’s petition for writ of habeas corpus testificandum with respect to 17 Plaintiff (ECF No 322) is denied as moot. The remaining petitions (ECF Nos. 323-326) 18 are denied without prejudice. Plaintiff’s motion for witness testimonies (ECF No. 321) is 19 also denied without prejudice. 20 III. ECF Nos. 327, 350 and 352 21 Plaintiff contends that his pendant state law claim—retaliation based on 22 Defendant’s refusal to give Plaintiff the Disciplinary Form III and Defendant’s handling of 23 the Emergency Grievance in violation of Article 1, Section 9 of the Nevada 24 Constitution—permits the Court to direct Defendant to provide certain information for 25 use at trial. The Court disagrees. Plaintiff is entitled to conduct discovery pursuant to 26 Fed. R. Civ. P. 26(b) during the time period permitted for discovery in this case. 27 Whether information obtained in discovery is admissible at trial is an issue that the 28 Court will resolve during the course of trial. Plaintiff is not entitled to have Defendant 2 1 provide information simply because his state law claim survived summary judgment. For 2 example, the motion docketed as ECF No. 350 asks the Court to direct “Administrative 3 Officials” to provide information relating to certain ESP Operating Procedures. (ECF No. 4 350.) The motion docketed as ECF No. 352 asks the Court to direct “Administrative 5 Officials” to provide the grievance documents of inmate Anthony Mendel. 3 (ECF No. 6 352.) Thus, Plaintiff’s two motions asking for “Administrative Officials” to provide certain 7 information (ECF Nos. 350, 352) are denied. 8 In the motion docketed as ECF No. 327, Plaintiff asks the Court to direct 9 “Administrative Officials” to respond to a grievance he initiated on July 2, 2015, 10 requesting information regarding Southern Dessert Correction Center shift supervisor 11 position on September 30, 2011.4 (ECF No. 327.) The July 2, 2015, grievance is not the 12 basis of the claims in this case. Plaintiff’s motion to compel such a response (ECF No. 13 327) is denied. 14 IV. ECF No. 346 15 Plaintiff filed another motion for appointment of counsel, arguing that counsel 16 should be appointed because the case turns on the question of credibility. (ECF No. 17 318.) In appealing the Magistrate Judge’s decision to deny his motion (ECF No. 337), 18 Plaintiff argues that Judge Cobb’s ruling is clearly erroneous because Judge Cobb 19 relies on decisions that are more than fifteen years old without taking into consideration 20 Plaintiff’s unique position in this case. (ECF No. 346.) First and foremost, the cases that 21 Judge Cobb relied upon explain the applicable standards governing appointment of 22 counsel in § 1983 cases. (ECF No. 337 at 1-2.) As Judge Cobb correctly found in 23 reliance upon Palmer v Valdez, 560 F.3d 965, 970 (9th Cir 2009) (cert. denied 559 U.S. 24 906 (2010), Plaintiff has failed to demonstrate exceptional circumstances exist here to 25 26 27 28 3Moreover, Plaintiff attempted through his request for production of document (request no. 1) to obtain Mendel’s grievance documents. (ECF No. 82-1 at 3.) The Magistrate Judge sustained Defendant’s objection to that request and this Court affirmed. (ECF No. 116 at 3; ECF No. 211 at 4-5.) 4The issue of whether Defendant was a shift supervisor when he addressed Plaintiff’s emergency grievance has been repeatedly litigated in this case. 3 1 warrant appointment of counsel for the limited purposes of presenting Plaintiff’s direct 2 examination.5 The claims remaining do not involve any complex issues and Plaintiff has 3 been able to articulate and prosecute his claims. The fact that the jury will be presented 4 with the issue of credibility does not make this case exceptional. Most, if not all, cases 5 depend on the parties’ credibility. Moreover, Plaintiff will be permitted to present his 6 testimony through a narrative form if he chooses and as long as he complies with the 7 evidentiary rules and the Court’s rulings. The Court therefore overrules Plaintiff’s appeal 8 of the Magistrate Judge’s order denying his motion for appointment of counsel (ECF No. 9 346). 10 V. ECF No. 348 11 Plaintiff asks the Court to direct transcription of the recording of a disciplinary 12 hearing or have the proper equipment to play the recording. (ECF No. 348.) To the 13 extent Plaintiff requests that the Court direct Defendants to transcribe the recording or 14 pay for the cost of such transcription, Plaintiff’s request is denied. The Court agrees with 15 Defendant that Plaintiff’s in forma pauperis status does not entitle him to shift the 16 expenses relating to trial exhibits to Defendant. Assuming the recording is admitted, 17 Plaintiff will be permitted to play the recording to the jury. Should the jury wish to listen 18 to the recording during their deliberation, they will be permitted to do so. Plaintiff’s 19 motion (ECF No. 348) is denied. 20 VI. ECF No. 353 21 Plaintiff asks the Court to exclude information relating to the charge that led to 22 the disciplinary hearing at issue in this case and is essentially a motion in limine. See 23 United States v. Heller, 551 F.3d 1108, 1111 (9th Cir.2009) (A motion in limine is a 24 procedural mechanism to limit in advance testimony or evidence in a particular area.). 25 However, Plaintiff fails to certify that the parties have met and conferred and have been 26 27 28 5Plaintiff relies on Solis v. County of Los Angeles, 514 F.3d 946 (9th Cir. 2008) to argue that a jury trial is different. (ECF No. 346 at 2.) However, in Solis, the Ninth Circuit reversed the district court’s decision to deny counsel because the district court failed to explain its reasoning, not because the court found that the plaintiff would be proceeding to a jury trial. Id. at 958. 4 1 unable to resolve this issue as required under LR 16-2(a).6 United States v. Heller, 551 2 F.3d 1108, 1111 (9th Cir.2009). The Court therefore denies Plaintiff’s motion (ECF No. 3 353) without prejudice. 4 VII. ECF No. 376 5 The Magistrate Judge denied Plaintiff’s emergency motion directing NDOC to 6 preserve Medel’s grievance files because Defendant indicated in his opposition brief 7 that a litigation hold has been requested. (ECF No. 364.) Plaintiff appeals the Magistrate 8 Judge’s ruling, arguing that Judge Cobb has abused his discretion and presenting 9 numerous questions relating to Defendant’s response. (ECF No. 376.) 10 The Magistrate Judge’s ruling on Plaintiff’s emergency motion relates to a pretrial 11 matter that magistrate judges are authorized to resolve subject to district court review 12 under a “clearly erroneous or contrary to law” standard. 28 U.S.C. § 636(b)(1)(A); see 13 also Fed. R. Civ. P. 72(a); L.R. IB 3-1(a) (“A district judge may reconsider any pretrial 14 matter referred to a magistrate judge in a civil or criminal case pursuant to LR IB 1-3, 15 where it has been shown that the magistrate judge’s ruling is clearly erroneous or 16 contrary to law.”) 17 Judge Cobb construed Defendant’s opposition to Plaintiff’s motion to preserve 18 Medel’s grievance files as a concession that the files would be preserved through a 19 litigation hold.7 Plaintiff has failed to demonstrate that Judge Cobb’s ruling is clearly 20 erroneous. The Court thus overrules Plaintiff’s appeal of the Magistrate Judge’s ruling 21 (ECF No. 376). 22 /// 23 24 25 26 27 28 6In a subsequent motion to withdraw his first motion in limine, Plaintiff asserts that the law librarian forwarded a dated copy of the Court’s Local Rules and he was not aware of this certification requirement under the current Local Rules which were amended in May 2016. (ECF No. 368.) 7In response to Plaintiff’s objection, counsel for Defendant again reiterated counsel’s request to NDOC to place a litigation hold on Medel’s grievance files, which remains in effect until the case is closed, including appeals. This litigation hold should suffice to preserve Medel’s grievance files pending any appeals in light of the Court’s decision to deny Plaintiff’s motion to compel production of Medel’s grievance documents for trial. In other words, Medel’s grievance documents from September 2011 should be preserved until close of this case, including any appeals. 5 1 VIII. ECF No. 378 2 Plaintiff’s motion in limine seeks to exclude what he characterizes as “perjured 3 evidence,” which includes Defendant’s discovery responses relating to Defendant’s shift 4 supervisor position and whether Defendant was authorized to handle emergency 5 grievances in September 2011. (ECF No. 378.) Defendant responds that Plaintiff is 6 improperly trying to limit Defendant from responding to Plaintiff’s allegation.8 (ECF No. 7 381.) 8 A motion in limine involves a preliminary ruling that is entirely within the 9 discretion of the Court. See Luce v. United States, 469 U.S. 38, 41-42 (1984). In 10 addition, limine rulings are provisional and “are not binding on the trial judge [who] may 11 always change his mind during the course of a trial.” Ohler v. United States, 529 U.S. 12 753, 758 n. 3 (2000); accord Luce, 469 U.S. at 41 (noting that in limine rulings are 13 always subject to change, especially if the evidence unfolds in an unanticipated 14 manner). 15 Plaintiff’s motion asks the Court to resolve the questions of credibility and weight 16 of the evidence in his favor, but these questions are reserved for the jury to decide. For 17 example, Plaintiff points to the absence of any NDOC documents authorizing Defendant 18 to act as the shift supervisor as support for his contention of “perjured evidence.” (ECF 19 No. 378 at 2.) However, whether Defendant had authority to act as the shift supervisor 20 is an issue that will need to be decided by the jury. The lack of any documents to 21 support Defendant’s authority to act goes to the weight of Defendant’s evidence. 22 Plaintiff also cites to the Court’s Order relating to the motions for summary judgment to 23 support his claim of “perjured evidence.” (Id. at 3-4.) The Court’s Order merely pointed 24 out Plaintiff’s proffered evidence and found that a reasonable jury could find in Plaintiff’s 25 favor. The Order underscores the need for the disputed evidence—Defendant’s 26 /// 27 28 8Plaintiff filed a reply to Defendant’s response. (ECF No. 385.) LR 16-3(a) provides that a reply will only be permitted with leave of court. Plaintiff failed to obtain leave of court to file his reply. The Court will strike Plaintiff’s reply (ECF No. 385.) 6 1 authority to address Plaintiff’s emergency grievance—to be considered and resolved by 2 a jury. For these reasons, Plaintiff’s motion in limine (ECF No. 378) is denied. 3 IX. ECF Nos. 380 and 394 4 Plaintiff seeks leave to file a second amended complaint to add three additional 5 defendants, including counsel for Defendant (Benjamin R. Johnson) for “aiding and 6 abetting, conspiracy to commit and or suborn perjury and obstruction of justice.” (ECF 7 No. 380.) On March 27, 2017, Plaintiff filed a motion for leave to file a third amended 8 complaint. (ECF No. 394.) The only difference between Plaintiff’s two motions appear to 9 be the additional statements about the discovery needed to support Plaintiff’s new 10 proposed claims. (ECF No. 394 at 6.) The claims are based on these individuals’ 11 participation in Defendant’s responses in this case. (Id.) 12 Because Plaintiff seeks leave to amend his complaint after the deadline for 13 amendment set forth in the Scheduling Order,9 Plaintiff must demonstrate “good cause” 14 as to why the Court should modify the scheduling order to grant him leave to amend his 15 complaint after the deadline. See Fed. R. Civ. P. 16(b)(4). “Rule 16(b)’s ‘good cause’ 16 standard primarily considers the diligence of the party seeking the amendment.” 17 Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). 18 Plaintiff has not and cannot demonstrate “good cause” to support his motions. 19 Based on his own account, Plaintiff had knowledge of the purported conduct of the 20 proposed named defendants in September 2015 at the latest (ECF No. 380 at 5-6). Yet, 21 Plaintiff waited until January 2, 2017, over a year later and over four months after the 22 Court ruled on the parties’ motions for summary judgment, to request leave to amend. 23 The Court agrees with Defendant that granting leave to amend at this time would be 24 prejudicial to Defendant. Plaintiff’s motions for leave to amend his complaint (ECF Nos. 25 380 and 394) are denied.10 26 27 28 9The Scheduling Order set November 28, 2014 as the deadline for amending the complaint. (ECF No. 27.) 10Because Plaintiff has not demonstrated good cause to support his motion, the Court need not address whether amendment would be futile. 7 1 X. CONCLUSION 2 The Court notes that the parties made several arguments and cited to several 3 cases not discussed above. The Court has reviewed these arguments and cases and 4 determines that they do not warrant discussion or reconsideration as they do not affect 5 the Court’s rulings. 6 It is ordered that Plaintiff’s motions with the following electronic case filing 7 numbers (ECF Nos.) are denied: 316, 321, 322, 323, 324, 325, 326, 327, 348, 350, 352, 8 353, 378, 380, and 394. 9 10 11 12 It is further ordered that Plaintiff’s motions for reconsideration of the Magistrate Judge’s rulings (ECF No. 346, 376) are denied. It is further ordered that Plaintiff’s reply in support of his first motion in limine (ECF No. 385) be stricken. 13 It is further ordered that Plaintiff’s motion to withdraw his first motion in limine 14 (ECF No. 368) is granted. Plaintiff’s first motion in limine (ECF No. 317) is deemed 15 withdrawn. Plaintiff’s motion for leave to file a reply to his first motion in limine (ECF No. 16 349) is denied as moot. 17 DATED THIS 22nd day of May 2017. 18 19 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 8

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