United States District Court, D. Nevada
WILLIAM G. COBB, Magistrate Judge.
Before the court is Defendants' response to the court's September 17, 2014 Order [Docket #95] regarding production of certain Nevada Department of Corrections procedures called "Post Orders.". (Doc. # 103.) The history behind Defendants' response is outlined in the court's earlier order regarding the parties' discovery dispute. Although court will not reiterate everything contained in its prior order, to maintain a proper historical understanding of the case, a review of the relevant facts would be important.
The court's screening order allowed Plaintiff to pursue a cause of action, among others, that the defendants' "door call" policy precluded him reasonable access to a toilet: "[t]he unavailability of toilets for limited periods of time does not violate the Eighth Amendment, but denying toilet access to an extent that inmates can soil themselves can." (Doc. # 11 at 5; citations omitted.)
Prior to the commencement of this litigation, Plaintiff had grieved the subject of the application of Defendants' door call policy. In response to Plaintiff's grievance, Warden LeGrand stated:
I have reviewed the "Door Call" policy for the institution and your caseworker's response to this grievance. You were answered appropriately and completely at the Informal level. Unit Door calls are not specific to Protective Segregation, LCC implements this policy for all Units. Unit Staff conducts a door call every 25 minutes. The doors are open for 5 minutes and then closed. Unit 3A staff indicated that if an inmate claims the need to use the toilet they are allowed to come in off the yard or off the tier and go into their cell. Due to Nevada's inclement weather restrictions outside toilets would not be functional, therefore they are not available. Door calls will continue to be implemented throughout the institution.
(Doc. # 64-2 at 13; emphasis added.)
During discovery in this matter, Defendant LeGrand's response to this grievance apparently prompted Plaintiff to request the policy to which Warden LeGrand referred. However, other than mentioning Operational Procedure (OP) 418 - which Defendant said "may" be responsive to Plaintiff's request (but could not be disclosed, even if it was responsive, because OP 418 was "confidential") - Defendant stated he was "unable to locate any such specific policy report or memo":
Request for Production No. 5:
All policy's (sic) reports or memorandums (sic) instructions to staff that require staff to open inmate's cell doors if they need to use the toilet.
Response to Request for Production No. 5:
Objection, assumes facts not admitted or in evidence. Objection, overly broad and vague with respect to time frame.
Notwithstanding these objections and without waiving them, Defendant is unable to locate any such specific policy, report or memo which states when correctional staff is required to open a cell door for an inmate to use the toilet. Defendant states LCC Operational Procedure 418 "Institutional Court Procedure" may be responsive to this request, ...