Gross v. Whiteman et al

Filing 54

ORDER DENYING # 38 Motion re disclosure of information Signed by Magistrate Judge William G. Cobb on 2/5/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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HAROLD E. GROSS,

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Plaintiff,
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vs.
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MEGAN McCLELLAN,
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Defendant.
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__________________________________________)

3:14-cv-00365-MMD-WGC
ORDER
Re: ECF No. 38

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Before the court is Plaintiff’s “Motion of Notice to Court of Defendants Disclosure of

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Confidential and False Information.” (ECF No. 38.)1 Defendant has responded (ECF No. 42) and

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Plaintiff has replied (ECF No. 53). After consideration of the arguments of the parties, the court denies

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Plaintiff’s motion.

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I. BACKGROUND

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Plaintiff’s amended complaint sued Lovelock Correctional Center (LCC) Caseworker Meegan2

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for allegedly improperly housing Plaintiff, “a known Jewish inmate,” with a violent security threat group

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member who was averred as being a “self-admitted white supremacist and Nazi skinhead gang member.”

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(ECF No. 6 at 3; Count I.) As a result of this housing, Plaintiff claims he was subjected to violence,

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physical beatings, torture and sexual assaults. Plaintiff’s allegations in Count I, interpreted as an Eighth

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Amendment claim for failure to protect, were allowed to proceed. (ECF No. 10 at 5.)

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In Count III, the court found that Plaintiff stated a colorable due process claim arising from

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No. 34.)

Refers to court’s Electronic Case Filing number.
The Defendant’s name appearing in the amended complaint was corrected to read as Megan McClellan. (ECF

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Plaintiff being placed in Administrative Segregation for 30 days after being attacked, which

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classification Plaintiff states was not properly reviewed and caused Plaintiff to lose his prison job. (Id.

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at 6.)

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Following completion of discovery, Plaintiff Gross filed a motion for summary judgment. (ECF

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No. 38.) Defendant filed a cross motion for summary judgment. (ECF No. 45.) Final briefing on the

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parties’ motions for summary judgment remain to be completed.

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This order addresses Plaintiff’s motion regarding “disclosure of confidential and false
information.”

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II. DISCUSSION

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The court has difficulty in interpreting the nature of Plaintiff’s motion and the relief he seeks.

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As best as the court can ascertain, it appears Plaintiff is complaining that Defendant McClellan disclosed

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what Plaintiff characterizes as being “confidential, false, and directly misleading information about

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Plaintiff’s current cellmate Anthony Prentice.” (ECF No. 38 at 1.) In the conclusion of his motion,

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Plaintiff states that “Inmate Prentice has a right to confidentiality as well as a right against being

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mislabeled by the Defendant.” Plaintiff seeks an order barring the Defendant “from disclosing this

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misleading and false information in both pleadings before the court and during trial.” (Id. at 9, ¶ VI.)

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Defendant’s response denies disclosing any confidential information about inmate Prentice or

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Plaintiff and suggests that if anyone disclosed information about inmate Prentice, it was Plaintiff.

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Defendant also states she “has no intention to raise this issue at trial, should the case advance that far.”

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(ECF No. 42 at 1-2.)

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Plaintiff’s reply memorandum reiterates his prior arguments that Defendant’s discovery responses

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state Plaintiff’s current housing with Mr. Prentice “places [Plaintiff] in a very similar situation which

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is the basis of this complaint.” Plaintiff interprets this statement as inferring he is again housed with a

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“Nazi skinhead” which is further interpreted as suggesting Mr. Prentice, his current cellmate, is also a

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Nazi skinhead. (ECF No. 53 at 3, 4.)

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As outlined above, Plaintiff seeks to prevent the Defendant from disclosing “misleading and false

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information.” However, the court does not perceive how the purported disclosure adversely impacts

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Plaintiff, if at all.
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Liberally interpreting Plaintiff’s filings, one might conclude that Plaintiff is arguing that

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Defendant’s discovery responses connote an acquiescence by Plaintiff – by being currently housed with

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someone whose character or background is similar to the inmate whom he contends attacked him as

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alleged in his amended complaint – constitutes an admission of some kind he consented to the housing

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arrangement at the time of the alleged assault. But even if that were the situation, the court cannot order

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a Defendant to respond to discovery in a fashion which does not offend Plaintiff’s theory of the case.

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More strictly construing Plaintiff’s motion, however, it appears to the court that Plaintiff is

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attempting to argue a claim (i.e., some type of errant disclosure) which belongs to inmate Prentice – not

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Plaintiff. Plaintiff has no standing to argue any violation of inmate Prentice’s rights.

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Additionally, the disclosure (if any) of information about Prentice’s background came mostly,

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if not exclusively, from Plaintiff. Even before Plaintiff’s motion was submitted, Plaintiff filed a lengthy

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declaration of Anthony Prentice which describes in great detail his (Prentice’s) role (or perhaps former

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role) as a “white supremist (sic) skinhead.” (ECF No. 33 at 1-3.) Also, Plaintiff’s motion submitted as

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Exhibit 3 an eleven page manifesto expressing Mr. Prentice’s (aka “Comrade Ammianlis N. Pompilius”)

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past and present views on racism. (ECF No. 38 at 41-51.)

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Plaintiff’s motion is at best tangentially associated with Plaintiff’s two surviving causes of action.

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It has been held, at least with respect to motions seeking injunctive relief, that the subject matter of the

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motion must bear a relationship or connection to the cause of action which is proceeding in Plaintiff’s

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civil rights action. The Ninth Circuit Court of Appeals recently stated in Pacific Radiation Oncology,

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LLC., v. Queen’s Medical Center that there must be a relationship between the injury claimed in the

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motion for injunctive relief and the conduct asserted in the underlying complaint. ___ F.3d. ___, 2015

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WL 9286637, at * 4 (9th Cir. Dec. 22, 2015). Without that nexus, the court lacks authority to grant the

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relief requested. Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994), citing DeBeers Consol.

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Mines v. United States, 325 U.S. 202, 220 (1945). The nature of the underlying allegations in Plaintiff’s

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Amended Complaint should have a connection to the pending motion, which they do not (or more

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appropriately stated, the motion should be associated with the charging averments of the complaint,

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which they do not). The harm suffered by Prentice, if any, is insufficiently related to the subject matter

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of Plaintiff’s action to enable this court to grant the relief sought by Plaintiff on behalf of Prentice.
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Last, whatever disclosure occurred has already taken place. The “cat is out of the bag,” so to

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speak. An order “barring the Defendant from disclosing this misleading and false information” could

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not undo what has occurred (even if the disclosures were misleading or false, which characterization the

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court does not necessarily embrace). Additionally, Defendant in her responsive memorandum states she

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“has no intention to raise this issue at trial, should the case advance that far.” (ECF No. 42 at 2.)

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III. CONCLUSION
Plaintiff’s motion (ECF No. 38) is DENIED.

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IT IS SO ORDERED.

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DATED: February 5, 2016.

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____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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