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Gunn v. Skolnik

United States District Court, D. Nevada

July 18, 2014

LUCRECIOUS GUNN, an individual, Plaintiffs,
HOWARD SKOLNIK, individually and in his official capacity as director of the Nevada Department of Corrections; PATRICK CONMAY, individually and in his official capacity as inspector General of the Nevada Department of Corrections; GREGORY COX, individually and in his official capacity as Deputy Director of Operations of the Nevada Department of Correction; CARLA CREVLING, individually and in her official capacity as Division Administrator of the Personnel Division of the Nevada Department of Corrections, DAVID MOLNAR, individually and in his official capacity as investigator of the Nevada Department of Corrections; and the STATE OF NEVADA, ex rel., ITS DEPARTMENT OF CORRECTIONS Defendants.


LLOYD D. GEORGE, District Judge.

Plaintiff, Lucrecious Gunn, asserts claims against Defendants, Howard Skolnik, Patrick Conmay, Gregory Cox, Carla Crevling, David Molnar, and the State of Nevada, ex rel., its Department of Corrections, under 42 U.S.C. § 1983, for violating his First Amendment right by retaliating against him for exercising his right to free speech; under 42 U.S.C. § 2000e-2 and 2000e-3, for violating Title VII by retaliating against him on the basis of race; and under Nevada state law, for inflicting emotional harm on him (#1 ¶ 12-15).

After Gunn filed his complaint, Defendants filed a motion for summary judgment (#22). Gunn then filed a response to Defendants' motion for summary judgment (#27), to which Defendants filed a reply (#29). Having considered the pleadings, the arguments of the parties, and admissible evidence submitted by the parties, the Court will grant Defendants' motion for summary judgment.

Motion for Summary Judgment

In considering a motion for summary judgment, the court performs "the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); United States v. Arango, 670 F.3d 988, 992(9th Cir. 2012). To succeed on a motion for summary judgment, the moving party must show (1) The lack of a genuine issue of any material fact, and (2)that the court may grant judgment as a matter of law. Fed. R. Civ. Pro. 56(c); Celotex Corp. V. Catrett, 477 U.S. 317 , 322 (1986); Arango, 670 F.3d at 992.

A material fact is one required to prove a basic element of a claim. Anderson, 477 U.S. at 248. The failure to show a fact essential to one element, however, "necessarily renders all other facts immaterial. " Celotex, 477 U.S. at 323. Additionally, [t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." United States v. $133, 420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting Anderson, 477 U.S. at 252).

"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. "Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact." Id., at 323. As such, when the non-moving party bears the initial burden of proving, at trial, the claim or defense that the motion for summary judgment places in issue, the moving party can meet its initial burdens of summary judgment "by showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Id., at 325. Conversely, when the burden of proof at trial rests on the party moving for summary judgment, then in moving for summary judgment the party must establish each element of its case.

Once the moving party meets its initial burden on summary judgment, the non-moving party must submit facts showing a genuine issue of material fact. Fed. R. Civ. Pro. 56(e); Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). As summary judgment allows a court "to isolate and dispose of factually unsupported claims or defenses, " Celotex, 477 U.S. at 323-24, the court construes the evidence before it "in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). The allegations or denials of a pleading, however, will not defeat a well-founded motion. Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986). That is, the opposing party cannot "rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008)(quoting Fed.R. Civ. P. 56(e)).


In his complaint, Gunn, an African-American, alleges that Defendants asked unconstitutional questions about a relationship that he had with a Caucasian woman. Defendants terminated Gunn for denying the relationship. Defendants' exhibits to their motion for summary judgment indicate (a) that he was having a relationship with the woman, and (b) the questions were asked during an investigation that resulted from the woman's EEO complaint that rumors were being spread about the relationship (#22: Exhibit B).

This motion concerns whether res judicata bars Gunn's § 1983 and Title VII claims, whether the Eleventh Amendment of the United States Constitution immunizes Defendants, and whether the Eleventh Amendment bars Gunn's state tort claim, or alternatively, whether this Court should decline to exercise supplemental jurisdiction.

In October 2001, Gunn was hired by the Nevada Department of Corrections (#22: Exhibit B, p. 2). He was then promoted to the position of Senior Correctional Officer and again to the position of Correctional Lieutenant. Id. Gunn obtained permanent status within the classified service of the State of Nevada in the position of Correctional Lieutenant effective November 6, 2007. Id.

In August 2008, Gunn received a notice that the warden recommended that he be terminated from State service (#22: Exhibit B, pp. 2-3). There were several violations listed on the specificity of charges that included discourtesy, sexual harassment, dishonesty, false and misleading statements, insubordination, neglect of duty, sexual misconduct, and unbecoming conduct. Id.

In September 2008, Gunn, with the representation of Mr. Boles, attended his pre-disciplinary hearing (#22: Exhibit B, p. 6). Following the hearing, Gunn was terminated from his employment effective September 15, 2008. Id. Subsequently, Gunn filed a timely appeal, which was heard in June 2009. In July 2009, the Nevada State Personnel Commission hearing officer affirmed the decision made by the pre-disciplinary hearing. Id. The hearing officer determined that there was substantial, reliable, and ...

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