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Anderson v. Cox

United States District Court, D. Nevada

August 3, 2017

JOSEPH ANDERSON, Plaintiff,
v.
JAMES “GREG” COX, et al., Defendants.

          ORDER RE: ECF NO. 36

          WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE

         Before the court is Plaintiff's Motion to Deny Defendants' Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56(f) (now Federal Rule of Civil Procedure 56(d)). (ECF No. 36.) Defendants filed a response. (ECF No. 40.) For the reasons set forth below, Plaintiff's motion is denied.

         I. BACKGROUND

         Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Pl.'s Am. Compl., ECF No. 7.) The events giving rise to this action took place while Plaintiff was housed at Lovelock Correctional Center (LCC). (Id.) Defendants are Jonathan Ball, Quentin Byrne, Tara Carpenter, James “Greg” Cox, Ray East, Sheryl Foster, Kara Krause[1], Robert LeGrand, E.K. McDaniel, Valaree Olivas, Jethro Parks, and James Stogner. (Screening Order, ECF No. 8.)

         Plaintiff filed his original Complaint, which the court screened and allowed some claims to proceed, and granted Plaintiff leave to amend with respect to others. (ECF Nos. 5, 6.) He subsequently filed his Amended Complaint (ECF No. 7.) The court screened the Amended Complaint and allowed the following claims to proceed:

         (1) claims under the First Amendment Free Exercise Clause and Religious Land Use and Institutionalized Persons Act (RLUIPA) in Count I against Cox, McDaniel, Foster, Stogner, Krause, Olivas, East and Ball, based on allegations that: (a) Cox, McDaniel, Foster, Stogner and Krause changed Administrative Regulation (AR) 810 to deny Wiccans (Plaintiff's faith) access to incense, herbs and teas while other faiths have the ability to purchase these items, (b) Olivas interfered with the religious grounds by destroying the sacred ritual area where Wiccans and other pagans practice their faith, and (c) East and Ball deprived him of his religious property;

         (2) a First Amendment retaliation claim in Count I against Parks based on the allegation that Parks subjected Plaintiff to oppressive cell searches because of his religion, and the searches were intended to chill his right to practice his religion without advancing any legitimate correctional goal;

         (3) an Equal Protection Clause claim in Count II against Cox, McDaniel, Foster, Krause, Stogner and LeGrand, based on allegations that they excluded Wiccans from access to the previously permitted religious materials while allowing mainstream religious faith groups access to those items; and

         (4) a conspiracy claim under 42 U.S.C. § 1985(3) against Cox, McDaniel, Foster, LeGrand, Carpenter, Byrne, and Olivas, based on allegations that they fostered a policy of harassing cell searches directed at Wiccans and impeded Plaintiff's efforts to seek changes to the alleged discriminatory policy. (ECF No. 8.)

         Defendants have filed a motion for summary judgment arguing: (1) Plaintiff failed to properly exhaust his administrative remedies regarding his First Amendment Free Exercise Clause and RLUIPA claims against Cox, McDaniel, Foster, Stogner, and Krause; (2) Plaintiff failed to properly exhaust his administrative remedies regarding his Free Exercise Clause and RLUIPA claims against Olivas; (3) Plaintiff failed to exhaust his administrative remedies with respect to his Equal Protection Clause claim against Cox, McDaniel, Foster, Krause, Stogner and LeGrand; (4) Plaintiff failed to exhaust his administrative remedies as to the conspiracy claim against Cox, McDaniel, Foster, LeGrand, Carpenter, Byrne, and Olivas; (5) the First Amendment Free Exercise Clause and RLUIPA claims against East and Ball are barred by the two-year statute of limitations; and (6) Parks did not retaliate against Plaintiff. (ECF No. 27.)

         Plaintiff filed a motion for enlargement of time to file his opposition to Defendants' motion for summary judgment, or to stay Defendants' motion for summary judgment. (ECF No. 29.) That same date, the court entered a scheduling order giving the parties until June 12, 2017 to join additional parties or seek leave to file an amended pleading. (ECF No. 30.) The discovery cutoff was set forth July 11, 2017. (Id.) The court granted Plaintiff an extension of time through May 31, 2017, to respond to Defendants' motion, and denied Plaintiff's motion in other respects. (ECF No. 32.)

         Plaintiff filed his opposition to the motion for summary judgment on May 10, 2017. (ECF No. 33, Exhibits at ECF No. 34, Declaration at ECF No. 35). The following day, he filed the motion to deny Defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(d). (ECF No. 36.) Defendants then filed their reply in support of their motion for summary judgment. (ECF No. 39.) In his opposition to the motion for summary judgment, Plaintiff argues that the motion should not be granted under Rule 56(d) “because the grievances raised in the claims … are exhausted or should be excused for Defendants failures to respond, and answer, that would be revealed in discovery.” (ECF No. 33 at 1:25-28.) He did not identify any particular discovery that needed to be undertaken, and went on to substantively address each of Defendants' arguments.

         In his Rule 56(d) motion (ECF No. 36), he states that discovery has not been fully developed, and claims that this needs to occur before summary judgment. (ECF No. 36 at 1-2.) He asks the court to deny the motion for summary judgment or refrain from ruling on it until the conclusion of discovery under the scheduling order. (Id. at 2.) Plaintiff did attempt to file his discovery requests with the court (ECF Nos. 38-1, 38-2), though they were returned pursuant to Local Rule 26-8. (ECF No. 38.)

         Defendants subsequently filed a motion to stay discovery while their dispositive motion is pending. (ECF No. 41.) In that motion, they stated that they produced all potentially relevant grievances with their motion for summary judgment, as well as the relevant regulations, declarations and documentation regarding the cell search at issue. (ECF No. 41 at 4.) They also noted that Plaintiff filed hundreds of pages of documents with his amended complaint and opposition to the dispositive motion. (Id.) Plaintiff filed a response ...


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