Brand v. Cox et al

Filing 164

ORDER re ECF No. 160 Motion for Supplemental Discovery. Defendants' counsel should report to the court as to the two inquiries outlined herein order on or before Wednesday, February 12, 2020. Signed by Magistrate Judge William G. Cobb on 1/27/2020. (Copies have been distributed pursuant to the NEF - LW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

6 THOMAS BRAND,
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Plaintiff,

8 v.

Case No.: 3:17-cv-00043-MMD-WGC
ORDER
Re: ECF No. 160

9 GREG COX, et al.,
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Defendants.

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Before the court is Plaintiff’s “Motion for Supplemental Discovery – Rule 56 (d)(2) Fed.

13 R. Civ. P.” (ECF No. 160). Plaintiff previously filed a Motion to Stay Summary Judgment
14 (ECF No. 158) requesting that briefing be stayed on Defendants’ Motion for Summary Judgment
15 (ECF No. 151). The court granted Plaintiff’s motion and stayed Defendants’ motion for summary
16 judgment until briefing could be completed on Plaintiff’s Motion to Stay (ECF No. 159).
17 Defendants did not file a response to Plaintiff’s motion to stay, possibly because the court granted
18 the stay a few days after Plaintiff’s stay motion was filed. (ECF No. 159.) Nevertheless, no
19 response was filed to the substantive component of Plaintiff’s stay motion, i.e., whether additional
20 discovery should be afforded Plaintiff in order to be able to respond to Defendants’ motion for
21 summary judgment.
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On January 6, 2020, Plaintiff filed the “Motion for Supplemental Discovery” (ECF No.

23 160) referred to above. Plaintiff’s motion states the supplemental discovery he wants to engage in

1 is “to acquire an Affidavit or Declaration from inmate Kevin Gray No. 62026 and to possibly take
2 photographs at the NNCC Culinary relevant to the statements made by Correctional Officer
3 R. Mullins.” (ECF No. 160 at 2-3.) Plaintiff subsequently states a desire to obtain “exact
4 measurements (survey) . . . to illustrate that Defendant Mullins could not see the Culinary from his
5 office, and demonstrate the exact positions of eye-witnesses as viewed from the video footage . . .
6 a wall is visually present. Alternatively, a schematic diagram could serve to illustrate where the
7 physical attack started . . . .” (Id. at 4-5.) Defendants filed their opposition to Plaintiff’s motion
8 for supplemental discovery on January 22, 2020 (ECF No. 161); the following day the court
9 scheduled a hearing on Plaintiff’s motion for Rule 56(d) discovery on February 21, 2020 (ECF No.
10 162).
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A.

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Although the court will await receipt of Plaintiff’s reply memorandum to Defendants’

Inmate Gray

13 opposition to rule on the Plaintiff’s motion, it has come to the court’s attention that former Nevada
14 Department of Corrections inmate Kevin Gray from whom Plaintiff seeks to obtain discovery may
15 be deceased. The NDOC website entitled “Inmate Search” states that as of January 27, 2020,
16 inmate Gray’s file is “inactive – death.” 1 Even though the court can take judicial notice of this
17 website page, the court instructs the Office of the Attorney General to contact NDOC and verify
18 this information as to former inmate Gray. If former inmate Gray is deceased, then part of the
19 rationale of Plaintiff’s Motion for Supplemental Discovery is moot.
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A copy of the NDOC Inmate Search form for Kevin Gray No. 62026 is attached as Exhibit A.

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B.

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The Office of the Attorney General is directed to ascertain whether any photographs of

Photographs/“Survey” of NNCC Culinary

3 NNCC culinary exist or could be secured with minimal expense or inconvenience. Alternatively,
4 the Attorney General is to investigate the availability of any diagram of culinary or whether one
5 could be secured with minimal expense or inconvenience.
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IT IS HEREBY ORDERED that Defendants’ counsel should report to the court as to

7 these two inquiries on or before Wednesday, February 12, 2020.
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The parties are advised that despite these two directives as to Defendants’ counsel, the

9 court has not determined whether Plaintiff’s Rule 56(d) motion should be granted. As Defendants
10 point out, the discovery deadline has been extended on several occasions (ECF No. 161 at 2, citing
11 ECF Nos. 78, 98 and 133). Plaintiff will have to explain why he did not earlier seek photographs
12 or diagrams of culinary in his reply memorandum and at the court’s hearing on Plaintiff’s motion
13 on February 21, 2020.
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Dated: January 27, 2020.
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WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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