Collins v. Collins et al

Filing 247

ORDER that overrules Plaintiff's objections (ECF Nos. 117 , 125 , 157 , 228 ); the Court will strike the reply briefs related to these objections (ECF Nos. 171 , 140 , 230 ); Plaintiff's motion to withdraw and strike his objec tion (ECF No. 156 ) is granted; Plaintiff's objection (ECF No. 154 ) will be stricken; Defendants' motion for extension of time to respond to Plaintiff's objection (ECF No. 124 ) is granted nunc pro tunc. Signed by Judge Miranda M. Du on 6/17/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RONALD COLLINS,

Case No. 3:16-cv-00111-MMD-WGC
Plaintiff,

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ORDER

v.
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JOSHUA COLLINS, et al.,
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Defendants.
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I.

INTRODUCTION

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This order addresses Plaintiff Ronald Collins’ pending objections to United States

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Magistrate Judge William G. Cobb’s rulings on pretrial issues. Because Plaintiff filed

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replies in support of his objections in violation of LR IB 3-1(a), and the Court moreover

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finds these replies to be unnecessary given the opportunities Plaintiff has had to brief

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these issues, the Court will strike these reply briefs. (ECF Nos. 140, 171, 230.) See LR IB

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3-1(a) (“Replies [in support of objections] will be allowed only with leave of court.”)

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II.

LEGAL STANDARD

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Magistrate judges are authorized to resolve pretrial matters subject to district court

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review under a “clearly erroneous or contrary to law” standard. See 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 reconsider

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

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IB 1-3, where it has been shown that the magistrate judge’s ruling is clearly erroneous or

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contrary to law.”). “A finding of fact is clearly erroneous if it is (1) illogical, (2) implausible,

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or (3) without support in inferences that may be drawn from the facts in the record.” Red

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Lion Hotels Franchising, Inc. v. MAK, LLC, 663 F.3d 1080, 1087 (9th Cir. 2011) (citation

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and quotation marks omitted). But a magistrate judge’s pretrial order issued under 28

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U.S.C. § 636(b)(1)(A) is not subject to de novo review, and the reviewing court “may not

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simply substitute its judgment for that of the deciding court.” Grimes v. City & County of

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San Francisco, 951 F.2d 236, 241 (9th Cir. 1991).

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III.

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DISCUSSION
The Court addresses Plaintiff’s currently pending objections to Judge Cobb’s

decisions in chronological order.

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A.

ECF No. 117

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Plaintiff objects to Judge Cobb’s denial of his motion for pictures of the food slot

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door “to be taken at scale” (ECF No 106) and Judge Cobb’s subsequent denial of his

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motion for reconsideration (ECF No. 113). (ECF No. 117.) The gist of this discovery

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dispute is Plaintiff’s request for pictures of the food slot located at Unit 7b cell 31 where

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Plaintiff’s arm was allegedly injured by Defendant Collins. (ECF No 85 at 2.) Defendants

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respond that they cannot allow Plaintiffs to take pictures in the area of the housing unit for

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safety and security reasons, but offered four pictures taken of the requested area. (ECF

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No. 95.) In his reply in support of his motion, Plaintiff claimed that Defendants’ counsel in

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an August 16, 2018 call (the day after Defendants filed their response (ECF No. 95) agreed

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to permit Plaintiff to take 2 pictures of him “at the cell door to show the court and the jury

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in this case how the low food slot door is located off the floor.” (ECF No. 101 at 2.) Judge

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Cobb agreed with Defendants and denied Plaintiff’s motion, finding that the four photos

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provided are sufficient. (ECF No. 106.)

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Plaintiff then moved for reconsideration, arguing that he needed 2 pictures to be

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taken to scale for him to demonstrate that “with the cell food slot being two foot off the

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floor (ground) it would be almost impossible for Plaintiff to have haven attempting to grab

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Defendant Collins’ keys as he had claimed.” (ECF No. 111 at 2.) Plaintiff also challenges

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Defendants’ claim of security threats in taking Plaintiff to the unit cell to take pictures. (Id.

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at 4.) Judge Cobb denied that motion, finding “the pictures that Defendants produced (ECF

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No. 95) adequately depict the location of the food slot in relation to the cell door.” (ECF

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No. 113 at 1.)

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Plaintiff cannot show that Judge Cobb was clearly erroneous in his finding. Indeed,

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the pictures provided (ECF No. 95-1) sufficiently depict the location of the food slot door

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in relation to the floor. The Court therefore overrules Plaintiff’s objection. (ECF No. 117.)

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Defendants’ motion for extension of time to respond to Plaintiff’s objection (ECF

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No. 124) is granted nunc pro tunc. However, the Court notes that Defendants did not file

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a response.

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B.

ECF No. 125

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Plaintiff contends that Judge Cobb has refused to assist him in obtaining needed

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documents or in allowing him to review files in Defendants’ possession, including refusing

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to recognize that he satisfied the meet and confer requirement by sending letters to

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Defendants’ counsel pursuant to LR IA 1-3(f). (ECF No. 125.) Defendants respond by

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reiterating Plaintiff’s failure to comply with the local rules and failure to follow Judge Cobb’s

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instructions on what Plaintiff needed to do to renew his motion to compel. (ECF No. 137.)

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Judge Cobb had found that Plaintiff did not satisfy the meet and confer requirement

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when he sent what was essentially a demand letter and did not receive a response. (ECF

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No. 123 at 2-3.) LR IA 1-3(f)(1) excepts from the meet and confer requirement of “face-to-

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face [conversation] or via telephone or via video conference” cases where an incarcerated

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individual like Plaintiff is appearing pro se. However, Plaintiff is still required to “meet and

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confer” which “means to communicate directly and discuss in good faith the issues

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required under the particular rule or court order.” LR IA 1-3(f). Judge Cobb did not clearly

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err in finding that Plaintiff’s letter did not satisfy this meet and confer requirement.

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Judge Cobb further found that Plaintiff’s request for the entire grievance file for him

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to identify what is relevant so he would not have to rely on defense counsel’s determination

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as to what is relevant is unreasonable. In particular, Judge Cobb reminded Plaintiff that

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he should follow Judge Cobb’s guidance when he denied Plaintiff’s initial motion to

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compel—that Plaintiff “defer requesting a court order to review his grievance file until he

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has a print out of all his grievances and compares that with the grievances Defendants

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are providing him in discovery.” (ECF No. 123 at 2.) Instead of complying with Judge
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Cobb’s instructions, Plaintiff filed his objection. The Court finds that Judge Cobb’s ruling

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was not clearly erroneous and overrules Plaintiffs objection.

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C.

ECF Nos. 154 and 156

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Plaintiff’s motion to withdraw and strike his objection (ECF No. 156), which

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Defendants do not oppose (ECF No. 160), is granted. Plaintiff’s objection (ECF No. 154)

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will be stricken.

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D.

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Plaintiff objects to Judge Cobb’s decision to deny his motion to deem Defendants

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to have admitted to claims three and four and to grant Defendants’ motion to amend their

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answer to respond to these two claims.1 (ECF No. 157.) Plaintiff challenges Judge Cobb’s

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finding that Defendants had good cause for the delay in not responding to these claims

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when they had a year to file their answer, and that Plaintiff would not be prejudiced by the

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delay. (Id. at 2-5.) Plaintiff also reiterated his argument that Defendants had been aware

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of these two claims for over a year when they responded to his motion for injunctive relief.

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(ECF No. 154 at 2; ECF No. 157 at 2.) However, Judge Cobb noted Defendants’ counsel’s

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explanation that “the oversight was an inadvertent clerical error and the full complete

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answer she intended to file was not filed for unknown reasons.” (ECF No. 155 at 2.)

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Regardless, Judge Cobb found that even though Defendants “did not formally respond to

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plaintiff’s claims 3 & 4, it appears that consistently throughout this litigation counts III and

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IV have been defended.” (Id.) Plaintiff has not demonstrated that Judge Cobb made a

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clear error in granting Defendants leave to amend their answer. Thus, his objection is

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overruled.

ECF No. 157

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Plaintiff also objected to Judge Cobb’s denial of his motion to compel discovery

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responses. (ECF No. 157 at 5-7.) In particular, he argues that Judge Cobb committed

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clear error in not compelling production of documents in response to his “request for

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production of documents (set one) ECF No. 121 Exhibit F” (“Document Requests”). (Id. at

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included an objection to Judge Cobb’s denial of his motion to compel
discovery (ECF No. 157 at 5-7).
1Plaintiff

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6.) Plaintiff asserts that request no. 1 asks for his “Doc 2020 Classification result forms

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from 2000 to present 2018[,]” while “request no 2-through 16 requested documents tape

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recordings.” (Id.) Defendants’ response argues that Judge Cobb overruled their opposition

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to Plaintiff’s failure to follow procedural requirements and directed Defendants to respond

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to a majority of the Document Requests. (ECF No. 164 at 7.)

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Judge Cobb did not deny Plaintiff’s Document Requests as he contends in his

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objection. Plaintiff’s motion to compel addressed only the following 9 of the requests in his

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Document Requests and not the full list of Document Requests as Plaintiff now asserts in

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his objection: nos. 1, 2, 3, 5, 6, 7, 8, 11, and 16. (ECF No. 121 at 5-12.) Judge Cobb

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granted Plaintiff’s motion to compel, and directed Defendants to provide supplemental

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responses to 7 of the 9 disputed requests: nos. 1, 2, 3, 6, 7, 11, 16 (and one—request no.

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8—was denied moot based on Plaintiff’s voluntary withdrawal of his motion as to this

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request). (ECF No. 155 at 4-5.) Thus, Plaintiff’s objection has no merit and is overruled.

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E.

ECF NO. 228

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Plaintiff asserts that he objects to Judge Cobb’s “report and recommendation” as

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to two discovery disputes. Because Plaintiff’s objection challenges Judge Cobb’s decision,

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not his “report and recommendation,” the Court will consider Plaintiff’s objection under LR

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IB 3-1. The Court will address the two issues raised in Plaintiff’s objection.

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First, Plaintiff argues that Judge Cobb should have granted his request for an

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adverse inference instruction, contending that Defendants have destroyed documents that

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they were required to save. (ECF No. 228 at 4.) Plaintiff insists that Defendants’ response

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to request no. 11 of the Document Requests that “no video or paperwork can be located

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regarding Plaintiff’s claim two” is contrary to Defendant Baca’s response to his grievance

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indicating that “he had reviewed the staff reports.” (Id. at 2-3.) Judge Cobb asked

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Defendants’ counsel to verify that no investigative reports exist and confirm in a

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supplemental response to Plaintiff’s request no. 11, but found there was no basis to

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impose an adverse inference instruction against Defendant Hightower. (ECF No. 224 at

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5.) Plaintiff has not demonstrated how this ruling is clearly erroneous since there is no

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evidence that Defendant Hightower destroyed or failed to retain evidence.

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Second, Plaintiff argues that Judge Cobb should not have permitted Defendants to

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offer only what Defendants contend is the relevant portion of a video (“Copy”) in support

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of summary judgment, and instead should have directed production of the complete video.

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(ECF No. 228 at 4-5.) Judge Cobb has ascertained that the original video could not be

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downloaded but was copied, and that the Copy contains footage from the relevant time

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frame, and ordered Defendants to provide a declaration from the person who made the

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Copy—the Warden’s secretary—to explain “what steps she undertook to copy the video

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from the computer playing the original video footage and whether the copy of the video

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depicts the same events captured on the original video footage.” (ECF No. 224 at 4.)

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Judge Cobb additionally directed that a revised video be submitted to include the time

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before 12:22 p.m. and after 12:42 p.m., which is the timeframe provided by Officer Collins

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in his report, and that the Warden or Associate Warden verified the Copy with the original

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video to ensure there isn’t any missing footage. (Id.) Given these inquiries and directives

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from Judge Cobb to address the issue of whether the Copy accurately reflects the original

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video on a computer that could not be downloaded, Plaintiff has not demonstrated that

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Judge Cobb’s decision is clearly erroneous.

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IV.

CONCLUSION

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In sum, the Court overrules Plaintiff’s objections (ECF Nos. 117, 125, 157, 228).

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The Court will strike the reply briefs related to these objections (ECF Nos. 171, 140, 230).

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Plaintiff’s motion to withdraw and strike his objection (ECF No. 156) is granted.

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Plaintiff’s objection (ECF No. 154) will be stricken.

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Defendants’ motion for extension of time to respond to Plaintiff’s objection (ECF
No. 124) is granted nunc pro tunc.
DATED THIS 17th day of June 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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