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Parkes v. Cox

United States District Court, D. Nevada

April 9, 2014

ROBERT E. PARKES, Plaintiff,
v.
GREG COX, et al., Doc. # 58 Defendants.

ORDER RE: PLAINTIFF'S SECOND MOTION TO COMPEL WITH REQUEST FOR IN CAMERA REVIEW DOC. # 58

WILLIAM G. COBB, Magistrate Judge.

Before the court is "Plaintiff's Second Motion to Compel with Request for In Camera Review." (Doc. #58.)[1] Defendants have responded (Doc. # 61) and Plaintiff has replied (Doc. # 62).

I. BACKGROUND

Plaintiff is incarcerated at the Northern Nevada Correctional Center (NNCC). Plaintiff brings action against the following individuals: NDOC Director Greg Cox, NNCC Warden Jack Palmer, Food Service Manager Jim Burton, and Food Service Supervisor Scott Nagle. Plaintiff alleges that Defendants violated his constitutional rights based on events alleged to have occurred at NNCC during the course of his work duties in the prison's kitchen. Plaintiff argues that on April 11, 2010, he slipped and fell on a wet kitchen floor, causing injuries and treatment at a hospital. Plaintiff seeks monetary relief from Defendants. He asserts three counts in the present civil right action: Count I, a claim arising from alleged retaliatory conduct after he filed a tort claim with the Nevada Attorney General; Count II, a claim of cruel and unusual punishment by reason of his culinary injury; and Count III, a denial of equal protection related to alleged differences in work place training and safety between inmate and non inmate culinary workers. (Doc. # 13, Amended Complaint; Doc. #15, Screening Order.)

Plaintiff's second motion to compel makes four arguments ("Plaintiff's Arguments 1-4") about an apparent continuing discovery dispute. (Doc. # 58.) The Defendants responded to the motion by addressing the same categories of arguments raised by Plaintiff (Doc. # 61.) The court will utilize the same format.

II. THE SECOND MOTION TO COMPEL

a) Plaintiff's "Argument 1"

Plaintiff requested NNCC culinary staff logs for the two years preceding Plaintiff's accident. (Request no. 6, Doc. # 58 at 2-5.) Plaintiff states he was provided housing logs, not culinary staff logs ( id. at 2-3). Defendants admit they provided irrelevant logs initially. However, Defendants assert that "NDOC NOTIS electronic logs include a separate log for the culinary for the time period at issue. Therefore, Defendants have now produced the log pages for the culinary facility, identified as Parkes 902: NDOC 0232-0234. (Exhibit A.)" (Doc. # 61 at 2.)

The Plaintiff's reply memorandum acknowledges receipt of these electronic NOTIS logs but states the logs do not cover the relevant time period he was seeking (two years prior to his accident); instead, they only pertain to the time period of April 5, 2010, until April 18, 2010. Defendants state the records they have produced relative to this request "constitute the log report for the culinary, for the time period referenced in your discovery request at issue." (Doc. # 61-1 at 2.)

Defendants' memorandum does not explain their utilization of the April 5, 2010 - April 18, 2010 time period. There is some suggestion Defendants searched for certain records and cannot locate them. (Doc. # 61 at 2; Doc. # 58-1 at 2; Pl's Exh. 2A.) However, Defendants were able to produce NOTIS records for an approximate two week time period before Plaintiff's accident, but again with no explanation for the time period Plaintiff identified.

Defendants' production did not cover the requested time period. Defendants are directed to produce culinary records, in whatever format is still available, for the specified two year time period preceding Plaintiff's accident.

Defendants also contest whether Plaintiff satisfied the "meet and confer" requirements of Local Rule 26-7. No declaration of counsel on the L.R. 26-7 contention accompanies Defendants' opposition. While perhaps there could have been greater attempts by Plaintiff at informal resolution, in view of the history of the discovery dispute and the deadlines facing Plaintiff, Plaintiff's attempts to resolve the discovery dispute and Defendants' admissions erroneous information was initially provided Plaintiff, the court is not inclined to disqualify this aspect of Plaintiff's motion on these grounds. See also Plaintiff's description of his meet and confer efforts. (Doc. # 62 at 2-3.)

b) Plaintiff's "Argument 2"

In Request No. 8, Plaintiff seeks names of other NNCC inmates injured in the culinary and also any reports generated for those injuries. (Doc. # 58 at 3-4.) Defendants claim they addressed this request by producing "Doc. 0221 to the NNCC Warden's Office for Plaintiff to be able to kite for review." (Doc. # 61 at 3; Doc. # 61-2 at 2.) Plaintiff's reply agues the Warden never informed him (the Plaintiff) that this document had been received by the Warden. However, Doc. # 58-1 at 2 is a letter from Defendants' counsel to Plaintiff advising Plaintiff that this exhibit was available for review in the Warden's office. Plaintiff argues that this court's Minutes of an underlying discover dispute (Doc. # 53) states Defendants were directed to respond to this discovery, as limited to prior "slip and fall" accidents. Any production could ...


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