Robert Jackson v. Nevada Department of Corrections, et al.

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 ROBERT JACKSON, Case No. 2:20-cv-01322-ART-MDC 6 Plaintiff, ORDER GRANTING MOTION TO 7 v. DENY OR DEFER JUDGMENT ON MOTION FOR SUMMARY JUDGMENT 8 NEVADA DEPARTMENT OF AND RELATED MOTIONS (ECF Nos. CORRECTIONS, et al., 85, 86, 95) 9 Defendants. 10 11 Pro se Plaintiff Robert Jackson filed a civil rights complaint under 42 U.S.C. 12 § 1983 against Defendants Nash, Hunter, Natali, and Quinn (“Defendants”) 13 alleging he was retaliated against in violation of the First Amendment for filing a 14 different civil rights lawsuit while incarcerated at Southern Desert Correctional 15 Center. (ECF No. 20.) Before the Court is Defendants’ Motion for Summary 16 Judgment (ECF No. 83), Plaintiff’s Motion to Defer/Deny Summary Judgment 17 (ECF Nos. 85, 86), and Plaintiff’s Objection to the magistrate judge’s order 18 denying his Motion to Issue Subpoena (ECF No. 94.) 19 I. Procedural Background 20 Plaintiff’s Second Amended Complaint was screened on May 10, 2022. 21 (ECF No. 22.) On November 16, 2022, the Court entered a scheduling order 22 directing discovery to close on May 14, 2023, with discovery motions due by June 23 13, 2023. (ECF No. 33.) Defendants requested discovery be stayed when they filed 24 their Defendants filed a Motion for Judgment on the Pleadings and Motion for 25 Summary Judgment on April 21, 2023. (ECF No. 39, 40.) The Court denied those 26 motions, and found the stay of discovery moot, on February 9, 2024. (ECF No. 27 62.) 28 The magistrate judge granted a new scheduling order and discovery plan 1 on March 28, 2024, with discovery due on October 23, 2024, and discovery 2 motions due by November 22, 2024. (ECF No. 65.) Plaintiff filed a Motion to 3 Compel on October 23, 2024 (ECF No. 68), and a hearing was conducted on 4 March 7, 2025. (ECF No. 76.) The magistrate judge ordered the Defendants to 5 provide supplemental responses to several of the Plaintiff’s Requests for 6 Production that had been pending since February 2023. (Id.) On April 1, 2025, 7 Defendants filed a Notice of Compliance with the Court’s order. (ECF No. 77.) 8 Plaintiff objected to that notice, arguing that Defendants’ discovery was deficient 9 and/or needed supplementation and filed a Motion to Reopen Discovery on April 10 14, 2025, which was fully briefed by both parties. (ECF Nos. 78, 80, 82.) 11 Defendants filed a second Motion for Summary Judgment on May 7, 2025. 12 (ECF No. 83.) Plaintiff filed a Response and Motion to Defer/Deny Summary 13 Judgment on Rule 56(d) on May 20, 2025. (ECF Nos. 85, 86.) Defendants 14 responded. (ECF Nos. 87, 88.) Plaintiff replied. (ECF No. 89.) 15 On June 26, 2025, the magistrate judge denied Plaintiff’s Motion to Reopen 16 Discovery. (ECF No. 90.) Plaintiff filed a Motion to Issue Subpoenas and Order 17 Service by U.S. Marshal on July 21, 2025. (ECF No. 91.) After the motion was 18 fully briefed, the magistrate judge denied Plaintiff’s Motion. (ECF No. 94.) Plaintiff 19 objected to the magistrate judge’s order, and Defendants responded, and Plaintiff 20 replied. (ECF No. 95, 96, 99.) 21 Still outstanding are Defendants’ Motion for Summary Judgment (ECF No. 22 83), Plaintiff’s Motion to Defer/Deny Summary Judgment based on Rule 56(d) 23 (ECF Nos. 85, 86), and Plaintiff’s Objection to the magistrate judge’s Order (ECF 24 No. 94.) 25 II. Legal Standard: Defer/Deny Summary Judgment on Rule 56(d) 26 “Rule 56(d) offers relief to a litigant who, faced with a summary judgment 27 motion, shows the court by affidavit or declaration that ‘it cannot present facts 28 essential to justify its opposition.’” Michelman v. Lincoln Nat'l Life Ins. Co., 685 1 F.3d 887, 899 (9th Cir. 2012) (quoting Rule 56(d)). A party 2 seeking Rule 56(d) relief must show that “(1) it has set forth in affidavit form the 3 specific facts it hopes to elicit from further discovery; (2) the facts sought exist; 4 and (3) the sought-after facts are essential to oppose summary judgment.” Family 5 Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp., 525 F.3d 822, 827 (9th Cir. 6 2008). “This showing cannot, of course, predict with accuracy what further 7 discovery will reveal; the whole point of discovery is to learn what a party does 8 not know, or without further information, cannot prove.” (emphasis in original) 9 Stevens v. Corelogic, 899 F.3d 666, 678 (9th Cir. 2018). On a Rule 56(d) request, 10 evidence sought must be more than “the object of pure speculation.” Id. (quoting 11 California v. Campbell, 138 F.3d 772, 779-80 (9th Cir. 1998). The party must also 12 show that he or she has pursued discovery diligently in the past. Pfingston v. 13 Ronan Eng’g Co., 284 F.3d 999, 1005 (9th Cir. 2002). 14 “Importantly, the Ninth Circuit explained that in pro se prisoner cases, 15 summary judgment is not favored when discovery requests for relevant evidence 16 are pending.” Johnson v. Williams, No. 2:20-cv-01835-RFB-DJA, 2023 WL 17 6218062, at *1 (D. Nev. Sept. 23, 2023) (citing Jones v. Blanas, 393 F.3d 918, 18 930 (9th Cir. 2004); Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988)). 19 III. Analysis 20 Plaintiff contends that he still requires discovery on five topics: (1) the shift 21 supervisor’s identity and logs who authorized the Notice of Charges; (2) a video 22 recorded by Sergeant John Rivera in an encounter with Plaintiff regarding his 23 vegan diet, (3) audio of his cellmate’s disciplinary hearing for OIC 440287, (4) an 24 unredacted photo of his cellmate’s identification card, and (5) emails generated 25 to or from Sergeant Rivera and Defendants regarding his vegan diet litigation. (Id. 26 at 6.) He argues that these materials are essential to his opposition to the Motion 27 for Summary Judgment in relevant part because they will provide facts that could 28 prove retaliatory motive or intent of the search and Defendant Nash and Hunter’s 1 level of involvement in the search and Notice of Charges. (Id.) Plaintiff points to 2 regular efforts to elicit discovery throughout the lawsuit and in recent motions to 3 demonstrate that he has diligently pursued production of materials. (ECF No. 85 4 at 3.) Defendants argue that Plaintiff either already has the information he is 5 requesting, or that it is not relevant to this lawsuit. (ECF No. 87 at 2.) 6 The Court may consider Plaintiff’s motion despite his earlier failure to 7 timely object to the magistrate judge’s order denying his Motion to Reopen 8 Discovery (ECF No. 90). Federal Rule of Civil Procedure 6(b)(1)(B) provides that 9 “[w]hen an act may or must be done within a specified time, the court may, for 10 good cause, extend the time . . . on motion made after the time has expired if the 11 party failed to act because of excusable neglect.” See also Pioneer Inv. Servs. Co. 12 v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993) (discussing factors to 13 consider in determining whether a party's failure to timely act constitutes 14 excusable neglect); Las Vegas Skydiving Adventures LLC v. Groupon, Inc., No. 15 2:18-cv-02342-APG-VCF, 2022 WL 594833, at *7 (D. Nev. Feb. 28, 2022) 16 (considering an untimely objection to a magistrate judge order). Local Rule IA 1- 17 4 also allows the court to “sua sponte or on motion change, dispense with, or 18 waive any of these rules if the interests of justice so require.” The Court finds that 19 reopening discovery is appropriate in this case, and therefore there is good cause 20 to extend the time to consider Plainitff’s Motion. See also Villery v. Jones, No. 21 1:15-cv-01360, 2021 WL 2227363, at *6 (E.D. Cal. Jun. 2, 2021) (finding that 22 where magistrate judge found a relevant piece of evidence irrelevant, it 23 constituted clear error). Plaintiff’s Rule 56(d) request is supported by his showing 24 of diligence in trying to discover essential facts needed to oppose Defendant’s 25 Motion for Summary Judgment. 26 a. Diligence 27 Plaintiff has diligently pursued discovery. Plaintiff moved to compel 28 discovery (ECF Nos. 43, 47, 68), objected to Defendants’ response after additional 1 discovery was ordered (ECF No. 78), and described the materials he seeks in his 2 Motion to Defer/Deny at issue (ECF No. 86). He now seeks to reopen discovery 3 based on information that he only had access to after Defendants responded to a 4 court order. The Court finds that Plaintiff acted diligently and without 5 unnecessary delay in attempting to discover the materials. 6 b. Essential to Oppose Summary Judgment 7 Plaintiff has five additional discovery requests that he argues are essential 8 to oppose summary judgment that he put forth in an affidavit attached to his 9 motion. (ECF No. 85 at 5.) 10 i. The identity of the shift supervisor and his tracking logs 11 Plaintiff argues that Defendants’ previous responses indicating Kelly Quinn 12 as the shift supervisor are insufficient because Defendants did not produce the 13 tracking logs he should have completed had he performed his duties pursuant to 14 A.R. 707. (ECF No. 89 at 2.) 15 Defendants argue that the search conducted on Plaintiff’s cell was random, 16 and that there is no causal link between Plaintiff’s vegan meal litigation and the 17 search and charges that Plaintiff experienced. (ECF No. 83 at 12.) Plaintiff argues 18 that shift supervisor logs could help refute this argument and determine “whether 19 the search was truly random or targeted” (ECF No. 85 at 6). In particular, he 20 seeks discovery of facts that could tend to show that Defendants were aware of 21 Plaintiff’s protected activity (his vegan meal litigation), that such knowledge may 22 have motivated their decisions to search Plaintiff’s cell and charge him, and their 23 actions did not advance legitimate correctional goals. 24 The Court finds that Plaintiff’s request for Defendant Quinn’s shift 25 supervisor logs could provide relevant, essential facts for his First Amendment 26 retaliation claim. Although the magistrate earlier denied Plaintiff’s Motion to 27 Reopen Discovery on the ground that the discovery he sought was irrelevant to 28 his claim of retaliation (ECF No. 90), Plaintiff clarifies that Defendant Quinn’s 1 logs regarding his Notice of Charge are documents that should exist under A.R. 2 707 and could be relevant here. (ECF No. 89 at 2.) Upon an observation of a 3 violation of the Code of Penal Discipline, A.R. 707 requires a staff member to 4 contact their section supervisor and provide a report. (ECF No. 83-12.) After 5 entering the report, the staff member contacts the section supervisor to alert 6 them to the report, upon which the supervisor will determine the specific charges 7 to be attached. (Id.) The section supervisor is then required to “complete the 8 [Notice of Charges] tracking log.” (Id.) Defendant Quinn’s submissions to the 9 tracking log could indicate whether there was a retaliatory motive or intent 10 behind the search or his decision to charge Plaintiff, as well as prove that there 11 was no legitimate penological interest, thus precluding summary judgment. This 12 is especially relevant where Defendants argue that “there are no facts establishing 13 causation.” (ECF No. 83 at 12.) Therefore, the Court grants this request for 14 discovery. 15 ii. Emails generated to or from Sergeant John Rivera 16 regarding OIC 440287 or Plaintiff’s vegan diet litigation 17 Plaintiff argues that emails between Sergeant Rivera and Defendants could 18 lead to information about his retaliation claim, specifically, whether individuals 19 who participated in the search and charging decisions were aware of and acting 20 upon knowledge of his vegan meal litigation. He claims that the emails could be 21 relevant to determine whether the search was “truly random or targeted” and 22 point to any personal participation of Defendant Nash in the search and charge 23 decision. (ECF No. 86 at 6.) 24 Defendant argues that the emails are not relevant because Defendants 25 already performed a search for any emails including the four Defendants and OIC 26 440287 for the time period January 1, 2018, through December 31, 2018. (ECF 27 No. 87 at 4-5.) Plaintiff responds that Defendants’ production of emails did not 28 encapsulate his current request. (ECF No. 89 at 4.) Plaintiff seeks discovery of 1 emails that differ in both time and scope: he requests emails exchanged between 2 October 2017 and December 2019, before being videotaped by Sergeant Rivera in 3 an encounter about his vegan meal, and including topics regarding his vegan 4 meal litigation. (Id. at 4-5.) The emails already produced do not necessarily reflect 5 all available communication that Plaintiff requests. 6 The magistrate judge found that the emails were not relevant because 7 Sergeant John Rivera is not a defendant and the request is unreasonably broad 8 and not proportional to the case. (ECF No. 90 at 4.) 9 Defendants’ emails to and from Sergeant Rivera from the time of Plaintiff 10 initiating his vegan meal litigation in 2017 could provide relevant, essential facts 11 to establishing retaliatory motive or intent. On December 19, 2017, Defendant 12 Nash was told via email that Sergeant Rivera documented an interaction between 13 himself and Plaintiff regarding his state prescribed diet. (ECF No. 78 at Ex. 3.) 14 This fact suggests that Sergeant Rivera was aware of Plaintiff’s vegan meal 15 litigation. Sergeant Rivera was then copied on emails from Defendants Quinn and 16 Natali regarding the outcome of the search and Notice of Charges in March 2018. 17 (ECF No. 89 at 5.) Additional facts from this discovery process could establish 18 Defendant Quinn and Natali’s knowledge of Plaintiff’s vegan meal litigation before 19 the search and personal participation of Defendant Nash in the adverse action 20 that Plaintiff suffered. Therefore, Plaintiff’s estimation of relevance goes beyond 21 mere speculation. The request can easily be tailored to a period between October 22 2017 and December 2019 to prevent disproportional discovery. Therefore, the 23 Court grants this request to reopen discovery. 24 iii. Remaining Requests 25 The Court finds Plaintiff’s remaining requests are not “essential to justify 26 [his] opposition to the motion for summary judgment” nor relevant. Stevens, 899 27 F.3d at 678. Plaintiff does not adequately explain what facts he believes will be 28 illuminated by watching the video recording of his dispute surrounding his vegan 1 meal. He suggests that Sergeant Rivera’s choice to record the conversation 2 supports a theory that the Defendants conspired to file a notice of charges. (ECF 3 No. 89 at 3.) The motive behind his choice, however, will not be illuminated by 4 the production of the conversation between Sergeant Rivera and Plaintiff. 5 Information related to Plaintiff’s cellmate, Xavier Powell—including his 6 unredacted ID, audio file of his hearing, disciplinary forms, and any potential 7 appeal—are not relevant to whether the search and charges against Plaintiff were 8 retaliation for his vegan meal litigation. Plaintiff does not describe why it is 9 relevant to the adverse action that he suffered whether his cellmate was found 10 guilty and if the hearing officer agreed that there were weapons as described in 11 the Notice of Charges. (Id.) Plaintiff also suggests that Defendants will use the 12 unredacted I.D. to mislead the jury but does not describe how. (ECF No. 89 at 4.) 13 Therefore, the Court will not reopen discovery for these materials. 14 c. Reopening Discovery 15 Federal Rule of Civil Procedure 16(b)(4) governs the modification of 16 scheduling orders and discovery plans. “A schedule may be modified only for good 17 cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). The good cause 18 inquiry focuses primarily on the movant's diligence. Local Rule 26-3 19 supplements Federal Rule of Civil Procedure 16. Under Local Rule 26-3, “[a] 20 motion or stipulation to extend a deadline set forth in a discovery plan must be 21 received by the court no later than 21 days before the expiration of the subject 22 deadline.” A request made after the expiration of the subject deadline will not be 23 granted unless the movant demonstrates “good cause,” and “that the failure to 24 act was the result of excusable neglect.” Local Rule 26-3. Excusable neglect 25 encompasses situations in which the failure to comply with a filing deadline is 26 attributable to negligence. Lemoge v. United States, 587 F.3d 1188, 1195 (9th Cir. 27 2009). Courts have reasoned that whether neglect is excusable depends on such 28 factors as: (1) the danger of prejudice to opposing parties; (2) the length of the 1 delay, and its potential impact on the proceedings; (3) the reason for the delay; 2 and (4) whether the movant acted in good faith. See Branch Banking & Trust Co. 3 v. D.M.S.I., LLC, 871 F.3d 751, 764-65 (9th Cir. 2017). The determination is 4 ultimately an equitable matter and should take into account all the relevant 5 circumstances. See Bank of Am., N.A. v. Ann Losee Homeowners Ass'n, 2017 WL 6 4467541, at *7 (D. Nev. Oct. 5, 2017). 7 i. Good Cause and Excusable Neglect 8 Based on the foregoing, the Court finds that good cause exists to reopen 9 limited discovery. Next, the Court finds there was excusable neglect for the delay. 10 The Court does not find Defendants would be prejudiced if discovery is reopened 11 for the limited purpose of enabling useful discovery regarding the tracking logs 12 and relevant emails. The Court is not persuaded that needing to refile the motion 13 for summary judgment after discovery closes in this matter would constitute 14 prejudice. The Court also finds that the reason for delay does not weigh against 15 granting Plaintiff’s motion because he has been diligently attempting to compel 16 discovery from the Defendants for years, and his present request directly flows 17 from new emails he received in April 2025. (ECF No. 78 4-5.) The Court finds that 18 the Plaintiff has acted in good faith. 19 Accordingly, Plaintiff’s Motion to Defer/Deny Summary Judgment (ECF No. 20 85) is granted, and Defendant’s Motion for Summary Judgment (ECF No. 83) is 21 denied without prejudice. 22 IV. Legal Standard: Objection to Magistrate Order 23 Magistrate judges are authorized to resolve pretrial matters subject to 24 district court review under a “clearly erroneous or contrary to law” standard. 28 25 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a); LR IB 3-1(a). A district court 26 will thus defer to a magistrate judge’s nondispositive order unless it is clearly 27 erroneous or contrary to law. Grimes v. City & Cnty. of San Francisco, 951 F.2d 28 236, 240 (9th Cir. 1991). “A finding is clearly erroneous when although there is 1 evidence to support it, the reviewing body on the entire evidence is left with the 2 definite and firm conviction that a mistake has been committed.” 24-7 Grp. of 3 Companies, Inc. v. Roberts, No. 3:13-CV-00211-MMD-WGC, 2014 WL 12707232, 4 at *2 (D. Nev. Nov. 21, 2014); (quoting United States v. Ressam, 593 F.3d 1095, 5 1118 (9th Cir. 2010)). “A decision is ‘contrary to law’ if it applies an incorrect legal 6 standard or fails to consider an element of the applicable standard.” Id. (quoting 7 Conant v. McCoffey, C97–0139, 1998 WL 164946, at *2 (N.D. Cal. Mar.16, 1998)). 8 V. Analysis 9 Based on the Court’s findings of relevancy under Rule 56(d), the magistrate 10 judge did not clearly err when he denied Plaintiff’s Motion to Issue Subpoena 11 regarding the video taken by Sergeant Rivera of his refusal of a meal, audio of his 12 cellmate’s disciplinary hearing, and documentation of his cellmate’s disciplinary 13 hearing for relevancy and proportionality. (ECF Nos. 91 and 95.) 14 VI. Conclusion 15 It is therefore ordered that Defendants’ Motion for Summary Judgment 16 (ECF No. 83) is DENIED WITHOUT PREJUDICE and with leave to refile after 17 completion of additional discovery. 18 It is therefore ordered that Plaintiff’s Motion to Defer/Deny Summary 19 Judgment (ECF No. 86) is GRANTED. 20 It is further ordered that discovery shall be reopened consistent with this 21 order. Defendants shall provide on or before March 2, 2026, the shift supervisor’s 22 tracking logs and emails with Defendants to and from Sergeant John Rivera 23 regarding Plaintiff’s vegan meal litigation for the period of October 2017 to 24 December 2019, if available, or a notice certifying that upon a diligent search 25 there are no further materials. 26 It is further ordered that Plaintiff’s Objection to the Magistrate Judge’s 27 Denial of a Rule 45 Subpoena (ECF No. 95) is OVERRULED. 28 // 1 Dated this 30 day of January, 2026. 2

4 ANNE R. TRAUM 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28