United States District Court, D. Nevada
JEFFREY S. PATTERSON, Plaintiff,
STATE OF NEVADA, ex rel. NEVADA DEPARTMENT OF CORRECTIONS, et al., Defendants.
WILLIAM G. COBB, Magistrate Judge.
Before the court is Plaintiff's Objection and Motion to Strike/Sanctions Pursuant to F.R.C.P. 37(b). (Docs. # 117, # 118.) Defendant Patterson filed an opposition. (Doc. # 127.) Plaintiff then filed another document titled, "Motion to Strike and Invoke Existing Sanctions Third Notice." (Doc. # 129.) In response, defendant Patterson filed a Motion for Clarification or in the alternative Motion for Enlargement of Time (Doc. # 131) stating that he was uncertain whether Plaintiff's latest filing (Doc. # 129) was actually a reply in support of Doc. # 118 or was a new motion. Plaintiff then filed a document stating, among other things, that Doc. # 129 was intended to be his reply brief. (Doc. # 132.)
After a thorough review, for the reasons set forth below, Plaintiff's motion (Doc. # 118) is granted in part and denied in part. Defendant Patterson's motion for clarification or an extension of time (Doc. # 131) is denied as moot.
At all relevant times, Plaintiff was an inmate in custody of the Nevada Department of Corrections (NDOC). (Pl.'s Compl., Doc. # 4 at 1; Am. Compl. Doc. # 74.) The events giving rise to this litigation took place while Plaintiff was housed at Northern Nevada Correctional Center (NNCC). ( Id. ) Plaintiff, a pro se litigant, brings this action pursuant to 42 U.S.C. § 1983. ( Id. ) The only remaining defendant is Chester Patterson.
A. Status of Pleadings and Parties
Plaintiff originally submitted this action for filing along with his application to proceed in forma pauperis on November 22, 2011. (Doc. # 1.) The court screened the complaint and ordered that Plaintiff could proceed with his claim that defendants Patterson and Columbus were deliberately indifferent to a serious risk to Plaintiff's safety when defendant Patterson, working in the control room, opened the cell door of two inmates Plaintiff believed to be gang members and opened Plaintiff's cell door, and Plaintiff was attacked. (Screening Order, Doc. # 3.) Plaintiff alleged that despite the noise neither defendant Patterson nor Columbus did anything to intervene. ( Id. ) The remaining claim against defendants Stankus and Dunham was dismissed. ( See Docs. # 31, # 36.)
The Attorney General's Office accepted service on behalf of defendant Columbus (Doc. # 14) and filed under seal the last known address of Derrick Patterson, who was no longer employed by NDOC. ( Id. ; Doc. # 15.) The court initially dismissed Derrick Patterson without prejudice because Plaintiff failed to serve him within 120 days as required by Federal Rule of Civil Procedure 4(m). ( See Docs. # 31, # 36.) Defendant Columbus filed his answer on December 31, 2012. (Doc. # 37.)
Plaintiff then filed a motion asking the court for an order allowing Plaintiff access to a NOTIS investigation report provided by the Attorney General's Office, bates stamped Paterson 845:Resp. to RPD -004-007. (Doc. # 45.) The court denied this request as moot as it was advised by defense counsel that Plaintiff would be able to view the document. (Doc. # 49.)
On May 6, 2013, Plaintiff filed a request for clarification of the identity of defendant Patterson, stating that he was able to review the investigation report referred to above, and noticed that the report referenced an officer Chester Patterson as working in the control bubble on the date in question, and not Derrick Patterson whose last known address had been filed under seal and who had been dismissed from the action because Plaintiff had not timely served him. (Doc. # 50.) In response, the court directed defense counsel to ascertain which officer Patterson was working in the control bubble on the date in question, Derrick Patterson or Chester Patterson. (Doc. # 52.) Defense counsel ultimately confirmed that it was Chester Patterson and not Derrick Patterson working in the control bubble on April 5, 2010. (Doc. # 55, Doc. # 55-1.) Thus, the court issued an order granting Plaintiff leave to amend to name Chester Patterson as a defendant. (Doc. #65; Am. Compl. at Doc. # 74.) Chester Patterson was served on October 2, 2013 (Doc. # 80) and he filed an answer on October 24, 2013 (Doc. # 83).
B. Defendant Columbus' Motion for Summary Judgment
Defendant Columbus filed a motion for summary judgment on May 1, 2013. (Doc. # 46.) After being granted an extension of time, Plaintiff filed his response. (Doc. # 60.) Defendant Columbus filed his reply. (Doc. # 61.) Plaintiff filed a sur-reply, which was stricken. ( See Docs. # 62, # 64, # 66, # 102.)
The court issued a report and recommendation, which was adopted and accepted by District Judge McKibben over Plaintiff's objection (Doc. # 71), granting summary judgment to defendant Columbus. (Doc. # 66; Doc. # 102.) In granting summary judgment, the court reviewed all of the evidence presented by both defendant Columbus and Plaintiff. ( Id. ) The court pointed out that Columbus provided a declaration stating that he was not aware in advance of the incident where Plaintiff was assaulted of any risk of harm to Plaintiff, and responded to Plaintiff's cell immediately upon learning that there was an altercation. (Doc. # 66 at 11.) The court found that this shifted the burden to Plaintiff to establish a genuine dispute of material fact as to whether or not defendant Columbus knew of and disregarded a substantial risk of serious harm to Plaintiff. ( Id. ) In analyzing Plaintiff's argument, the court construed the facts in the light most favorable to Plaintiff and even credited Plaintiff's statements that Columbus should have been able to hear yelling on the tier at the time of the incident. ( Id. ) However, the court concluded that this statement was not enough to create a genuine dispute of material fact on this issue. ( Id. at 11.)
C. Plaintiff's Motion to Compel
Following the issuance of the report and recommendation to grant summary judgment in favor of defendant Columbus, and the addition of defendant Chester Patterson to this action, Plaintiff filed a motion to compel. (Doc. # 92.) Defendant Patterson filed a response. (Doc. # 94.) Plaintiff's motion did not set out the text or response of the discovery at issue and Plaintiff did not engage in a meet and confer effort prior to filing his motion as is required by the Federal Rules of Civil Procedure and Local Rules of Practice. Defendant Patterson outlined the discovery dispute and provided the requests and responses in question. (Doc. # 94; Doc. # 94-1.) Despite the deficiencies in Plaintiff's motion, the court decided to address the discovery dispute. ( See Minutes of March 12, 2014 hearing at Doc. # 108.) The dispute centered on defendant Patterson's responses to Plaintiff's four requests for the production of documents; however, the crux of the dispute centered on requests 1 and 3:
REQUEST FOR PRODUCTION NO. 1: "Investigation Report by Russ Herbert of the Office of the Inspector General of the assault on Plaintiff that occurred on April 5, 2010."
RESPONSE TO PRODUCTION NO. 1: Objection, investigations are confidential in nature. Plaintiff is requesting documents that Plaintiff is not permitted to possess; per AR 560 - Central and Institutional Record Files; AR 568 - Inmate Review of Departmental Records and AR 569 - Confidentiality of Inmate Records. Objection, Inspector General investigations are confidential pursuant to AR 457 - Investigations. Notwithstanding these objections and without waiving them, Defendant will produce a NOTIS report entitled "Investigation Detail Report" including the disposition of the investigation identified as bearing bates stamp range PATERSON 845: Resp. to RPD  - 0001-0004. The documents are not being sent to Plaintiff for his in-cell ...