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Cross v. Jaeger

United States District Court, D. Nevada

May 22, 2017

ANTHONY CROSS, Plaintiff,
v.
RON JAEGER, et al., Defendants.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         After summary judgment proceedings, Plaintiff's retaliation claims based on Defendant's refusal to give Plaintiff the Disciplinary Form III and Defendant's handling of the Emergency Grievance in violation of the First Amendment and Article 1, Section 9 of the Nevada Constitution remain to be tried. (ECF No. 313.) This Order addresses numerous motions pending before the Court.[1]

         Plaintiff's motion to withdraw his first motion in limine (ECF No 317) for failure to comply with LR 16-3(a) is granted. (ECF No. 368.) Plaintiff's first motion in limine (ECF No. 317) is deemed withdrawn. Plaintiff's motion for leave to file a reply to his first motion in limine (ECF No. 349) is denied as moot.

         The Court will address the remaining motions.

         I. MOTION FOR RECONSIDERATION - ECF No. 316

         Plaintiff's motion for reconsideration asks the Court to reconsider its decision to grant summary judgment on Plaintiff's access to court claims (ECF No. 313).[2] (ECF No. 316.) A motion to reconsider must set forth “some valid reason why the court should reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Reconsideration is appropriate if this Court “(1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J v. Acands, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Plaintiff's motion shows that he disagrees with the Court's reasoning, but such disagreement alone is not enough to warrant reconsideration. Plaintiff's motion (ECF No. 316) is therefore denied.

         II. ECF Nos. 321-326

         Plaintiff asks the Court to direct his presence and that of certain inmate witnesses to appear at trial. The Court will direct that Plaintiff be transported to court for trial once trial is set. The Court will set a pre-trial status conference to address the witness presentation, whether in person or by video conference, once trial is set. Accordingly, Plaintiff's petition for writ of habeas corpus testificandum with respect to Plaintiff (ECF No 322) is denied as moot. The remaining petitions (ECF Nos. 323-326) are denied without prejudice. Plaintiff's motion for witness testimonies (ECF No. 321) is also denied without prejudice.

         III. ECF Nos. 327, 350 and 352

         Plaintiff contends that his pendant state law claim-retaliation based on Defendant's refusal to give Plaintiff the Disciplinary Form III and Defendant's handling of the Emergency Grievance in violation of Article 1, Section 9 of the Nevada Constitution-permits the Court to direct Defendant to provide certain information for use at trial. The Court disagrees. Plaintiff is entitled to conduct discovery pursuant to Fed.R.Civ.P. 26(b) during the time period permitted for discovery in this case. Whether information obtained in discovery is admissible at trial is an issue that the Court will resolve during the course of trial. Plaintiff is not entitled to have Defendant provide information simply because his state law claim survived summary judgment. For example, the motion docketed as ECF No. 350 asks the Court to direct “Administrative Officials” to provide information relating to certain ESP Operating Procedures. (ECF No. 350.) The motion docketed as ECF No. 352 asks the Court to direct “Administrative Officials” to provide the grievance documents of inmate Anthony Mendel.[3] (ECF No. 352.) Thus, Plaintiff's two motions asking for “Administrative Officials” to provide certain information (ECF Nos. 350, 352) are denied.

         In the motion docketed as ECF No. 327, Plaintiff asks the Court to direct “Administrative Officials” to respond to a grievance he initiated on July 2, 2015, requesting information regarding Southern Dessert Correction Center shift supervisor position on September 30, 2011.[4] (ECF No. 327.) The July 2, 2015, grievance is not the basis of the claims in this case. Plaintiff's motion to compel such a response (ECF No. 327) is denied.

         IV. ECF No. 346

         Plaintiff filed another motion for appointment of counsel, arguing that counsel should be appointed because the case turns on the question of credibility. (ECF No. 318.) In appealing the Magistrate Judge's decision to deny his motion (ECF No. 337), Plaintiff argues that Judge Cobb's ruling is clearly erroneous because Judge Cobb relies on decisions that are more than fifteen years old without taking into consideration Plaintiff's unique position in this case. (ECF No. 346.) First and foremost, the cases that Judge Cobb relied upon explain the applicable standards governing appointment of counsel in § 1983 cases. (ECF No. 337 at 1-2.) As Judge Cobb correctly found in reliance upon Palmer v Valdez,560 F.3d 965, 970 (9th Cir 2009) (cert. denied 559 U.S. 906 (2010), Plaintiff has failed to demonstrate exceptional circumstances exist here to warrant appointment of counsel for the limited purposes of presenting Plaintiff's direct examination.[5] The claims remaining do not involve any complex issues and Plaintiff has been able to articulate and prosecute his claims. The fact that the jury will be presented with the issue of credibility does not make this case exceptional. Most, if not all, cases depend on the parties' credibility. ...


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