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Kelly v. Helling

United States District Court, D. Nevada

October 21, 2014

JAMES KELLY, Plaintiff,
DON HELLING, et al., Defendants.


ROBERT C. JONES, District Judge.

This case arises out of the suspension of a prison employee, allegedly in retaliation for protected speech. Defendants have moved for summary judgment. For the reasons given herein, the Court grants the motion.


Plaintiff James Kelly is a Senior Corrections Officer with the Nevada Department of Corrections ("NDOC"). ( See Compl. ¶ 10, ECF No. 1-2). Plaintiff previously sued unidentified defendants when he was terminated, allegedly in retaliation for having complained about officer pay, discrimination, and other retaliation (the "First Lawsuit"). ( Id. ¶ 8). The parties settled the First Lawsuit, with Plaintiff being reinstated to the rank of Lieutenant. ( Id. ¶ 9).[1]

Before retiring in July 2011, Deputy Director of NDOC Don Helling issued two specifications of charges against plaintiff and recommended to Director of NDOC James Cox that Plaintiff be suspended without pay and demoted to Senior Corrections Officer. ( Id. ¶¶ 2, 6, 10). Cox approved the recommendation. ( Id. ¶ 11). Helling and Cox acted in retaliation for plaintiff having filed the First lawsuit and for having previously complaining about discrimination and retaliation at NDOC. ( Id. ¶ 12).

In November 2011, plaintiff again sued unidentified defendants, alleging that the suspension and demotion were based on unlawful retaliation (the "Second Lawsuit"). ( Id. ¶ 13). From late 2011 through April 2012, [2] plaintiff also filed requests for investigation with the Inspector General concerning alleged perjury by unidentified persons in unspecified matters and unspecified "threats" to personnel if staffing levels fell. ( Id. ¶ 14). On May 17, 2012, Plaintiff brought this matter, as well as alleged previous retaliation, to the attention of the Prison Board at one of its meetings. ( Id. ¶ 16).[3] The parties agreed to dismiss the Second Lawsuit without prejudice on November 28, 2012.

On May 4, 2013, Warden Isidro Baca recommended that Plaintiff be suspended. ( Id. ¶ 17). Cox and Deputy NDOC Director E.K. McDaniel approved the recommendation. ( Id. ).[4] Plaintiff was suspended in retaliation for his previous protected activity.

Plaintiff sued Helling, Baca, McDaniel, Cox, Greg Smith, and the State of Nevada ex rel. NDOC in state court for First Amendment violations under 42 U.S.C. § 1983 and for negligent training and supervision. Defendants removed and have now moved for summary judgment.


A court must grant summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those which may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. A principal purpose of summary judgment is "to isolate and dispose of factually unsupported claims." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). In determining summary judgment, a court uses a burden-shifting scheme:

When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.

C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations and internal quotation marks omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

If the moving party meets its initial burden, the burden then shifts to the opposing party to establish a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S. at 324.

At the summary judgment stage, a court's function is not to weigh the evidence and determine the truth, but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The evidence of the nonmovant is "to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not significantly probative, summary judgment may be granted. See id. at 249-50. Moreover, unsupported claims and inadmissible evidence cannot aid either party in meeting its burden at summary judgment. "A trial court can only consider admissible evidence in ruling on a motion for ...

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