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Leavitt v. Wickham

United States District Court, D. Nevada

February 3, 2015

CODY LEAVITT, Plaintiff,
HAROLD WICKHAM, et al., Defendants.


GLORIA M. NAVARRO, Chief District Judge.

Pending before the Court is a Motion for Summary Judgment (ECF No. 39) filed by Defendants Harold Wickham, Linda Adams, Isidro Baca, Greg Cox, Frank Dreesen, Jerry Howell, Doni Jennings, E.K. McDaniel, and Jennifer Nash (collectively, "Defendants"). Additionally before the Court is a Motion for Leave to File Sur-Reply (ECF No. 49) filed by Plaintiff Cody Leavitt ("Plaintiff"). Both motions are fully briefed. For the reasons discussed below, the Court DENIES Plaintiff's Motion for Leave to File Sur-Reply and GRANTS Defendants' Motion for Summary Judgment.


This case arises out of alleged Fourth and Fourteenth Amendment violations resulting from a prisoner's unconsented blood draw. (Compl. at 1, ECF No. 1-1). Plaintiff Cody Leavitt ("Plaintiff") is an inmate incarcerated in the Nevada Department of Corrections ("NDOC"). (Am. Compl. at 1, ECF No. 9). Although presently housed at Lovelock Correctional Center (Not. of Change of Address at 1, ECF No. 31), the incidents at issue occurred while Plaintiff was housed at High Desert State Prison ("HDSP") (Am. Compl. at 10). On April 15, 2012, an inmate request form ("kite") was anonymously submitted to HDSP corrections officers, alleging that Plaintiff was continuously sexually assaulted by Plaintiff's cellmate. (Ex. A to Defs.' Mot. for Summ. J., ECF No. 39-1). HDSP officers followed institutional procedures pursuant to a potential Prison Rape Elimination Act violation (Ex. B to Defs.' Mot. for Summ. J., ECF No. 39-2) and, upon submission of the kite, escorted Plaintiff to the infirmary (Ex. C to Defs.' Mot. for Summ. J., ECF No. 39-3).

After HDSP personnel conducted an interview and examination, Plaintiff denied the kite's allegations and refused to go to the hospital. (Am. Compl. at 8, 10; Ex. B to Defs.' Mot. for Summ. J.). The HDSP doctor nevertheless required the mandatory blood draws at six weeks, twelve weeks, and six months after an alleged sexual assault. (Ex. F to Defs.' Mot. for Summ. J., ECF No. 39-6). Accordingly, Plaintiff was unwillingly subjected to blood draws on April 16, 2012, July 9, 2012, and October 16, 2012. (Am. Compl. at 10). Plaintiff contends that the October 16, 2012 blood draw was the most excessive form of the HDSP's "Mengele-esque hemolarceny, " as Plaintiff was fasting in accordance to his religious practices and was unwillingly subjected to the blood draw regardless. ( Id. ).

Plaintiff filed his Complaint on March 21, 2013, against numerous employees at HDSP, mainly alleging Fourth, Eighth, and Fourteenth Amendment, and Article I, Section 18 of the Nevada Constitution violations. (Compl. at 1). Plaintiff filed his Amended Complaint on April 30, 2013. (Am. Compl. at 1). Pursuant to a Screening Order, the Court dismissed all of Plaintiff's claims except for the Fourth Amendment unlawful search and seizure violation, the Nevada Constitution violation, and the Fourteenth Amendment procedural due process violation. (ECF No. 28). Subsequently, Defendants filed the instant Motion for Summary Judgment, stating that HDSP's personnel were necessarily acting within their duties in mandating the blood draws and that the actions taken were lawful. (Defs.' Mot. for Summ. J. 5:25-6:4). Specifically, "NDOC employees were required to follow protocol, " and "Plaintiff was not arbitrarily subjected to a blood draw and only the amount necessary to perform the test was drawn." ( Id. ).

On July 3, 2014, Plaintiff filed a Motion for Leave to File Sur-Reply, alleging that Exhibit A to Defendant's Motion for Summary Judgment is "missing nearly a dozen other attachments that Mr. Leavitt affixed thereto." (Mot. for Leave to File Sur-Reply 1:19-20, ECF No. 49). Defendants filed a Response. (ECF No. 50).


The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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 that 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. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). 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 applies a burden-shifting analysis. "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 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 satisfies its initial burden, the burden then shifts to the opposing party to establish that a genuine issue of material fact exists. 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 that are unsupported by factual data. 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 Celotex Corp., 477 U.S. at 324.

At summary judgment, 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.


A. Motion for Leave to File ...

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