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Putzer v. Attal

United States District Court, District of Nevada

January 26, 2015

SHMUEL ATTAL, et al., Defendants.

ORDER (DKT. #19, #55, #67, #69)


Plaintiff David Saul Putzer is an inmate at Southern Desert Correctional Center who alleges defendants violated his constitutional rights while he was a detainee at the Clark County Detention Center (“CCDC”). Defendants Susan Brager, Larry Brown, Tom Collins, Chris Guinchigliani, Mary Beth Scow, Steve Sisolak, and Lawrence Weekly (the “Commissioner Defendants”) move to dismiss and for summary judgment on Putzer’s claims against them. The Commissioner Defendants argue they have no statutory responsibility for operation of CCDC as members of the Board of Clark County Commissioners, and thus they cannot be liable for any of Putzer’s claims arising out of alleged constitutional violations at CCDC. The Commissioner Defendants additionally contend they cannot be liable in their individual capacities because they can act only through the Board as a whole. The Commissioner Defendants also argue Putzer did not respond to requests for admissions propounded on him, and he therefore has admitted facts fatal to his claims.

Putzer responds to the motion to dismiss by arguing the Commissioner Defendants are statutorily required to inquire about the security and condition of the prisoners, and thus they are responsible for constitutional violations at CCDC. Putzer responds to the summary judgment motion by arguing the proceedings are unfair because he is not an attorney, he cannot afford counsel, and the Magistrate Judge denied his prior request for appointment of counsel. Putzer objects to the Magistrate Judge’s rulings at the October 6, 2014 hearing (Dkt. #64) on these same grounds.

I. Background

I previously screened Putzer’s Amended Complaint (Dkt. #16) pursuant to 28 U.S.C. § 1915A(a). (Dkt. #15.) The following claims remain pending against the Commissioner Defendants: (1) First Amendment and Religious Land Use and Institutional Persons Act of 2000 (“RLUIPA”) violations for failure to implement a policy to provide kosher meals for Passover (counts one and two); (2) Equal Protection violation for failing to provide kosher meals for Passover when persons practicing other religions were provided greater accommodations than Jewish prisoners (count six); and (3) denial of access to the courts for failure to implement an effective grievance procedure (count nine). Putzer brings these claims under 42 U.S.C. § 1983 against the Commissioner Defendants in their official and individual capacities. (Dkt. #16 at 4-6, 8-11.)

II. Motion to Dismiss and Motion for Summary Judgment

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions, and affidavits demonstrate “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), (c). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to go beyond the pleadings and set forth specific facts demonstrating there is a genuine issue of material fact for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000). The Court views all evidence and inferences which may be drawn therefrom in the light most favorable to the non-moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008).

In his Amended Complaint, Putzer alleges the Commissioner Defendants were final policy makers who both failed to implement policies at CCDC regarding kosher meals at Passover and failed to implement a proper grievance procedure. Putzer alleges that the absence of these policies led to the deprivation of his rights. (Dkt. #16 at 4-11, 14, 22, 25, 27-28, 62-63, 74, 85, 94.) The Commissioner Defendants move to dismiss and for summary judgment on the basis that they have no responsibility over conditions of confinement at CCDC. According to the Commissioner Defendants, operation of the jail is statutorily entrusted to the sheriff and to the Las Vegas Metropolitan Police Department, and Putzer therefore must pursue his claims against those parties.[1] In his opposition to the motion to dismiss, Putzer contends the board has a duty of inquiry into the treatment and condition of the prisoners that establishes a duty on the board’s part, and the board knew or should have known of violations at CCDC but did nothing to remedy the situation. Putzer thus contends the Commissioner Defendants had a policy of omission that was deliberately indifferent to his constitutional rights.

To establish § 1983 liability, a plaintiff must show the defendants acted under color of state law and “caused the deprivation of a federal right.” OSU Student Alliance v. Ray, 699 F.3d 1053, 1061 (9th Cir. 2012) (quotation omitted). “[T]here is no respondeat superior liability under section 1983, ” and thus the plaintiff must show the defendant personally participated in the alleged rights deprivation. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). The question here is whether the Commissioner Defendants have responsibility for setting policy at CCDC such that their alleged failure to do so amounts to personal participation in the deprivation of Putzer’s constitutional rights.

The sheriff is charged with directly managing and operating county jails in Nevada. “The sheriff is the custodian of the jail in his or her county, and of the prisoners therein, and shall keep the jail personally, or by his or her deputy, or by a jailer or jailers appointed by the sheriff for that purpose, for whose acts the sheriff is responsible.” Nev.Rev.Stat. § 211.030; see also id. § 248.050 (“The sheriff of each county shall have the custody of the jail of his or her county and the prisoners in the same, and shall appoint the keeper thereof, for whose conduct the sheriff shall be responsible, and whom the sheriff may remove at pleasure.”). As custodian of the jail and the prisoners therein, the sheriff “has charge and control over all prisoners committed to his or her care.” Id. § 211.140(1). The sheriff is responsible for the “conditions of confinement, ” including “a prisoner’s access to the law library, privileges regarding visitation and the use of the telephone, the type of meals provided to the prisoner and the provision of medical care in situations which are not emergencies.” Id. § 211.140(2).

In contrast, the board of county commissioners has limited authority over the conditions of confinement for prisoners in the county jail. The board:

1. Is responsible for building, inspecting and repairing any county or branch county jail located in its county.
2. Once every 3 months, shall inquire into the security of the jail and the treatment and ...

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