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Peck v. McDaniel

United States District Court, D. Nevada

December 1, 2014

Frank M. Peck, Plaintiff
v.
E.K. McDaniel, et al., Defendants

Frank M. Peck, Plaintiff, Pro se, Indian Springs, NV.

For E.K. McDaniel, Defendant: Catherine Cortez-Masto, LEAD ATTORNEY, Nevada Attorney General's Office, Carson City, NV; Mercedes S. Menendez, LEAD ATTORNEY, Office of the Attorney General, Las Vegas, NV; David T. Gluth II, State of Nevada Office of the Attorney General, Las Vegas, NV.

For Rashonda Smith, Defendant: Mercedes S. Menendez, LEAD ATTORNEY, Office of the Attorney General, Las Vegas, NV.

ORDER AND JUDGMENT

Jennifer A. Dorsey, United States District Judge.

This civil-rights action arises out of pro se prisoner Frank M. Peck's access-to-the-courts and retaliation allegations against officials in the Nevada Department of Corrections (" NDOC").[1] Defendants E.K. McDaniel, Brian Williams, Harold Wickham, Charlene Clarkson, and Rashonda Smith move for summary judgment.[2] Peck moves for a temporary restraining order and a preliminary injunction.[3] Having considered the record and law, I grant the motion for summary judgment in part, enter judgment in favor of the defendants on all remaining claims, and deny Peck's request for injunctive relief.

Background

Mr. Peck currently resides at Nevada's High Desert State Prison.[1] He alleges that his constitutional rights were violated at four NDOC prisons where he was incarcerated from June 2010 to June 2012.[2] Three claims remain after screening. First, Peck contends he was denied access to the courts in pursuit of his habeas claims when Warden McDaniel " confiscated [his] 'reading glass, ' [and] 'ink pen' upon arrival at Ely State Prison then denied [him] access to the Prison Law Library." [3] Though he was provided " an ink pen the size of a Toothpick, " his arthritis makes writing painful, particularly with a small pen.[4] Peck claims that McDaniel denied him access to law clerks; that " random research materials" were provided " on purple paper with #6 font, " which was " hardly discernable lacking in contrast"; and that McDaniel illegally confiscated all of Peck's legal documents " under the guise" of transferring Peck.[5]

Peck also asserts two retaliation claims against the five remaining defendants.[6] He believes they seek to " intentionally chill and suppress Mr. Peck's will and ability to file Civil Rights complaints and habeas corpus post-conviction Actions, all while denying any and all access to the Prison Law Library or 'anyone adequately trained in the law.'" [7] He alleges, inter alia, that the Nevada State Prison (" NSP") officials housed him with a known gang member " in an attempt to get Mr. Peck killed"; that NSP placed him in protective custody " in retaliation for expressing intentions of filing suit against NSP"; that he was routinely denied access to telephones, paperwork, and receipt of his own legal mail; that his prison grievances were routinely denied or lost; that Clarkson wrote him up for false charges of which he was eventually exonerated; and that he was denied communication with his attorney and DNA expert.[8] As a result, Peck alleges, he was denied the DNA evidence that " could have proven his innocence" and prevented him from spending 18 years in jail, and he argues that his pending litigation has suffered incalculable harm.[9]

Discussion

I. Defendants' Motion for Summary Judgment (Doc. 101)

The five defendants move together for summary judgment on Peck's claims. They argue that his claims have been mooted because the defendants are only sued in their official capacities, which limits Peck to injunctive relief as his sole remedy; that there is no evidence that Williams personally participated in any constitutional-rights violation; and that Peck cannot demonstrate he was denied access to the courts.[10] In his opposition, Peck argues that he sues the defendants in their individual capacities, and that discovery is still open and defendants have not provided enough discovery to permit the entry of summary judgment.[11]

Summary judgment is appropriate when the pleadings and admissible evidence " show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." [12] When considering summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party.[13] If reasonable minds could differ on material facts, summary judgment is inappropriate because its purpose is to avoid unnecessary trials when the facts are undisputed, and the case must then proceed to the trier of fact.[14]

If the moving party satisfies Rule 56 by demonstrating the absence of any genuine issue of material fact, the burden shifts to the party resisting summary judgment to " set forth specific facts showing that there is a genuine issue for trial." [15] The nonmoving party " must do more than simply show that there is some metaphysical doubt as to the material facts"; he " must produce specific evidence, through affidavits or admissible discovery material, to show that" there is a sufficient evidentiary basis on which a reasonable fact finder could find in his favor. [16] The court only considers properly authenticated, admissible evidence in deciding a motion for summary judgment.[17]

A. Defendants Are Sued in their Official Capacities, and Injunctive Relief--Now Moot-- the Available Remedy for these Claims.

In an order dated February 21, 2014, I found that defendant Smith was sued in her official capacity only.[18] Defendants McDaniel, Williams, Clarkson, and Wickham now urge that they, too, are only sued in their official capacities.[19] Peck argues that all five defendants cannot have been sued only in their official capacities because his amended complaint specifies that they were sued in ...


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