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Hatlen v. Walsh

United States District Court, D. Nevada

July 16, 2014

KENNETH HATLEN, Plaintiff,
v.
MARY WALSH, et al., Defendants.

ORDER

WILLIAM G. COBB, Magistrate Judge.

This order addresses various motions filed by Plaintiff asserting that he has been unable to obtain copy of documents he has submitted for filing with the court and requesting that the court supply him with copies of his filings. The subject motions include: Docs. #203[1], #220, #317, and #322. The court ordered defendants to file a response addressing this issue ( see Docs. #252, #260), which they did (Doc. #281). Plaintiff filed a reply (Doc. #296) as well as a supplemental reply brief (Doc. #309).

This order also addresses various motions filed by Plaintiff related to claims by Plaintiff that his legal files have been interfered with and associated claims regarding his inability to respond to Defendants' pending dispositive motion, including: Docs. #194, 203, 227, 228, 235, 237, 238, 240, 242, 300, 308, 310, 319, 320. Defendants filed several responsive briefs (Docs. #283, #330.) Plaintiff also filed a reply brief. (Doc. #298.) The court held a hearing. (Minutes at Doc. #336.) Plaintiff subsequently filed additional documents on this topic: Docs. #337, #338, #339, #340, and #341.

I. SUMMARY OF FILINGS RELATED TO COPYING DOCUMENTS

A. Docs. #203 and #220

In Doc. #203, Plaintiff asserts, among other things, that NDOC employees refused to copy documents for his case. He also asks that the court provide him with a copy of this motion. He submits, among other documents, a legal copy work request form which was denied stating: "We don't copy medical kites unless already filled in by staff." (Doc. #203 at 34.)

In Doc. #220, Plaintiff raises, among other issues, the allegation that NDOC staff were not allowing him to copy documents he needs to support motion for injunctive relief and asks the court to provide him with a copy of his motion. He submits a memorandum from the law library supervisor, dated March 7, 2014, regarding a copy work request Plaintiff had sent. Plaintiff was told that the copy work request contained an informal level grievance that had yet to be turned in and had not been responded to by staff and informed Plaintiff; "We do not copy items that have not received a response from staff."

B. Court Orders at Docs. #252, #260

The court ordered Defendants to respond to these filings. (Docs. #252, #260.) In doing so, the court asked Defendants to address the following hypotheticals:

(1) if a plaintiff were claiming a defendant was deliberately indifferent to a serious medical need because he constantly complained of medical issues in kites but received no response, how could the plaintiff prove the claim if he were not permitted to copy and submit to the court the kites he claims he submitted to NDOC but to which he received no response? (2) if an inmate were asserting in opposition to a motion raising an exhaustion defense that he did file a particular grievance but never received a response or was otherwise obstructed from responding, how could the inmate prove his position without being able to submit the grievance documentation he claims he submitted but to which he received no response? (3) Isn't it the province of the Attorney General's Office in responding to such an argument to contest the validity of such a document? (4) Is it therefore improper for prison officials and employees to make such a determination?

C. Defendants' Response at Doc. #281

In their response, Defendants contend that the limitations on Plaintiff's copy requests are well reasoned and have not inhibited his ability to pursue this litigation. (Doc. #281 at 2.) Defendants contend that while Plaintiff claims he is being denied the ability to make photocopies of documents, he already has copies of these documents. ( Id. ) Specifically, Defendants assert that inmate grievance forms at NDOC are multi-copy forms which provide every inmate who sends an informal, first or second level grievance a copy of the grievance that is submitted to the institution. ( Id. ) The inmate retains the last copy of the multi-copy form, which is the "gold sheet, " for his records. ( Id. )

If an inmate needs to submit a copy of a grievance that has not yet been responded to, the inmate can submit a copy of the gold sheet with a copy request form (known as a "brass slip") and request a copy of the gold sheet to attach to a court filing. ( Id. at 2-3.) Due to the ability of an inmate to alter a grievance prior to filing with the NDOC, a copy will not be made of an unsubmitted inmate grievance original (white form). ( Id. ) In other words, if an inmate is claiming the institution has not given him a response to a grievance he has submitted, he will have the gold copy of the grievance he submitted, which he can then request to copy and attach to a court filing. Therefore, in this instance Plaintiff's copy work request was denied because he attempted to submit a copy of a grievance that had not been submitted at all. ( Id. at 3.)

With respect to inmate kites, Defendants acknowledge that these are forms that do not have duplicate copies like grievances; however, inmate kites sent to the warden, medical department or law library are responded to, photocopied and a copy is placed in the inmate's file while the original is returned to the inmate. ( Id. ) If an inmate believes that his kite is not being appropriately or timely responded to, the inmate can document such a complaint and raise the issue in a grievance. ( Id. ) The inmate would then retain his copy of the grievance submitted on this issue. ( Id. ) Nonetheless, Defendants dispute that Plaintiff has been denied the ability to photocopy kites that have not yet received a response as he has attached several such kites to exhibits in a prior motion. ( Id., referencing Doc. #203 at 20-23.)

D. Plaintiff's Reply at Doc. #296

In his reply, Plaintiff reiterates his claim that he has been obstructed from obtaining copies. (Doc. #296 at 1.) Plaintiff also contends that there are other ways that an inmate could alter a grievance, if that is Defendants' concern in not copying grievances that have yet to be submitted to the institution. ( Id. at 2.)

With respect to kites, Plaintiff claims that while kites are supposed to be logged, responded to and returned, they are not. ( Id. at 3.)

E. Plaintiff's Supplemental Reply at Doc. #309

While Plaintiff did not seek leave of court to file a supplemental reply, the court reviewed the document and provides a summary of it here. Plaintiff is cautioned that the Local Rules only contemplate the filing of a motion, response and reply brief, and if he fails to seek leave of court before filing additional briefing in the future, such documents may be stricken from the record.

In this document, Plaintiff asserts that he requested copies of ten pages of a gold grievance form that was returned and he was told he could not copy a grievance that had not been responded to. He also asserts that he tried to copy kites, answered as well as unanswered, and his request was denied because they were unanswered. He includes copies of copy work requests denied because they included "unanswered kites/grievances." However, it is not clear from this document what was actually submitted for copying, i.e., whether he did in fact submit kites/grievances that had not yet been submitted to the institution.

F. Plaintiff's Request for Assistance at Doc. #317

In this document, Plaintiff says he was denied copies of motions, documents, evidence and exhibits on June 9 and 11, 2014. He does not identify the documents.

G. Request of Courts at Doc. #322

Plaintiff once again asserts that he does not have a copy of any filed documents because Defendants have refused to provide him with copies.

II. DISCUSSION RE: MOTIONS RELATED TO COPYING

Defendants have provided a satisfactory explanation as to why Plaintiff's copy work requests including kites and grievances might be denied. Plaintiff, on the other hand, has not sufficiently supported his argument that he is being denied the ability to copy documents and that it is hampering his ability to litigate this case. The record in this case is replete with evidence that Plaintiff is in fact able to make photocopies of documents. Defendants have explained that if Plaintiff wishes to copy a grievance to which he has not received a response, he need only request a copy of the copy of the grievance that he retained when he submitted it. Defendants' reason for not allowing copies of grievances that have never been submitted to the institution is reasonable given the ability of an inmate to alter such a document. It is not relevant that there might be other ways for an inmate to go about altering the document, as Plaintiff suggests.

The court likewise finds Defendants' explanation regarding the process for copying kites to be satisfactory. If a plaintiff believes he has a claim based on the failure of the inmate to respond to his kites or based on a delay in responding to a kite, he can request to view his file which should contain a copy of the kite. If an inmate believes that a copy of the kite has not been retained properly by the institution, as Plaintiff suggests, his remedy is to document such a complaint by utilizing the prison grievance process.

Finally, to the extent Plaintiff asks the court to provide him with copies of his motions being filed with the court, the court will not indulge this request. Plaintiff is expected to utilize NDOC's regulations governing photocopies to make copies for his records of documents he has filed with the court. He has submitted no valid support for his claim that he is unable to copy such ...


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