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Mitchell v. Cox

United States District Court, D. Nevada

March 2, 2015

GREG COX, et al., Defendants.

ORDER Defendants' Motion to Dismiss (ECF No. 17) Defendants' Motion to Summary Judgment (ECF No. 39) Defendants' Motion to Strike Surreply (ECF No. 46)

RICHARD F. BOULWARE, II, District Judge.


This case is before the Court on a Motion to Dismiss (ECF No. 17) and a Motion for Summary Judgment (ECF No. 39), both of which were filed by Defendants, officials employed by the Southern Desert Correctional Center (SDCC) and/or the Nevada Department of Corrections (NDOC). Plaintiff Tarz Mitchell claims that he suffered multiple violations of his constitutional rights while incarcerated at SDCC. In his complaint, Plaintiff alleges that Defendants violated his right to free exercise of religion and retaliated against him for filing grievances and civil lawsuits seeking to vindicate that right. Plaintiff also alleges that Defendants discriminated against him because of his race and religion. Finally, Plaintiff claims that he was subjected to excessive force by correctional officers at SDCC. Defendants filed a Motion to Dismiss and a Motion for Summary Judgment, each of which makes several arguments as to why Plaintiff's case should not proceed. Defendants also filed a Motion to Strike a surreply filed by Plaintiff in response to the Motion for Summary Judgment (ECF No. 46). For the reasons stated below, the Motion to Dismiss is granted in part and denied in part. The Motion for Summary Judgment is denied. The Motion to Strike Plaintiff's surreply is granted.


The following background is taken from Plaintiff's complaint. ECF No. 4. Plaintiff Tarz Mitchell, who is currently incarcerated at High Desert State Prison, filed this pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Id. at 1-7. Plaintiff is African American and Jewish, and also identifies as a Hebrew Israelite. Id. at 8-9. Plaintiff alleges that he filed multiple grievances and civil complaints against SDCC officials because he was not receiving kosher meals, or at least satisfactory kosher meals, and was being prevented from worshiping on the Sabbath (Saturday). Id . Plaintiff alleges that as a result of his assertion of his rights and the concomitant grievances he filed, Defendants waged an "aggressive retaliatory campaign" against him between January and August of 2011 with the intent to intimidate and harass Plaintiff and to suppress the exercise of his religious beliefs. Id. at 1, 7-8. These actions were:

• Filing a Notice of Charges against Plaintiff for abuse of the grievance process;
• Implementing a policy requiring all Jewish inmates, and only Jewish inmates, to report to the culinary unit for all meals or receive a Notice of Charges;
• Targeting, or encouraging other officers to target, Plaintiff and other Jewish inmates who received kosher diets and filing Notices of Charges against them to punish them for filing grievances;
• Cutting the calories Plaintiff received at mealtimes, feeding him the same meals every day, and feeding him roach-contaminated food;
• Changing worship schedules so that Plaintiff and other Hebrew Israelites were not able to worship on Saturdays;
• Claiming that Hebrew Israelites are not recognized by the NDOC; and
• Refusing to allow Plaintiff to observe Passover because he is black and Jewish, whereas at least one white Jewish inmate was allowed to observe it.

Id. at 8-9.

Plaintiff also alleges that on February 12, 2012, Defendants Brown, Guerro, and Espinoza-all of whom were employed as correctional officers by SDCC at the time-used racial epithets and exerted excessive force against Plaintiff. Id. at 9-10. Plaintiff alleges that these officers "dragged him out of the culinary, then slammed him against the wall, kicked [his] legs from up under him, forced their knees in his back, having him in a spider man position against the culinary wall in an impossible spread eagle stance [and] encouraging the gun tower to shoot Plaintiff if he slightly moved from the position." Id. at 9. Plaintiff also states that these officers did these things to Plaintiff to show other inmates "what happens to black [inmates] who want to participate in religious practice and receive a kosher meal." Id. at 9-10. Plaintiff states that the officers called him an "impostor Jew" and told him he could not go to the medical unit. Id. at 10. Plaintiff suffered injuries to his back that continue to cause pain. Id.

Plaintiff's complaint was filed with the Court on March 12, 2013. The complaint alleges in general that based upon the actions outlined above, officials at Southern Desert Correctional Center violated Mitchell's First Amendment and Fourteenth Amendment rights, as well as his rights under the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA").

Specifically, Plaintiff alleges six counts in his complaint. On March 12, 2013, the Court screened the complaint and allowed the following claims to proceed:

• Count I: First Amendment retaliation claim against Greg Cox, Cheryl Burson, and Brian Williams. Plaintiff alleges that these defendants filed notices of charges against him after he filed grievances about being harassed and discriminated against because he is black and practices Judaism.
• Count II: First Amendment free exercise and retaliation, Fourteenth Amendment equal protection, and RLUIPA claims against Defendants Williams, Burson, Cox, Foster and Oswald Reyes. Plaintiff alleges that these defendants cut his calories to less than the state- and federal-recommended 1200 daily calories and fed him roach-infested food so that he would forego kosher meals.
• Count III: First Amendment free exercise, Fourteenth Amendment equal protection, and RLUIPA claims against Defendants Williams, Burson and Frank Dreesen. Plaintiff alleges that these defendants denied him the opportunity to practice his Jewish faith and to observe the Jewish holidays.
• Count IV: First Amendment free exercise and retaliation, Fourteenth Amendment equal protection, and RLUIPA claims against Jimmy Jones, Dean Willet, and Nathan Courtney. Plaintiff alleges that these defendants filed numerous Notices of Charges (NOCs) against him in retaliation for his filing of grievances regarding the lack of calories and roach-infested food.
• Count V: First Amendment free exercise and retaliation, RLUIPA, and Fourteenth Amendment equal protection claims against Williams, Burson, Foster, Johnny Youngblood, and Julio Calderon. Plaintiff alleges that these Defendants refused to allow him to worship on the Sabbath and cancelled services in retaliation for his filing of grievances. He also alleges that these Defendants allowed white Jewish inmates to observe Passover and Muslims to observe Ramadan but did not allow him to observe religious holidays or attend Sabbath services.
• Count VI: First Amendment retaliation, Eighth Amendment excessive force, and Fourteenth Amendment discrimination claims against defendants Brown, Guerro and Espinoza for the alleged force described above. Plaintiff alleges these defendants used excessive force to retaliate against him because he is black and practices Judaism and submitted grievances seeking kosher meals.

Defendants filed a Motion to Dismiss on October 3, 2013, ECF No. 17, and a Motion for Summary Judgment on February 13, 2014, ECF No. 39. Plaintiff filed a surreply to the Motion for Summary Judgment, and Defendants filed a Motion to Strike the surreply. ECF Nos. 45, 46. The Court held oral argument on the Motion to Dismiss and Motion for Summary Judgment on January 29, 2015. Minutes of Proceedings, ECF No. 63.


A. Motion to Dismiss

An initial pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The court may dismiss a complaint for failing to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In ruling on a motion to dismiss, "[a]ll well-pleaded allegations of material fact in the complaint are accepted as true and are construed in the light most favorable to the non-moving party." Faulkner v. ADT Sec. Servs., Inc., 706 F.3d 1017, 1019 (9th Cir. 2013) (citations omitted).

To survive a motion to dismiss, a complaint need not contain "detailed factual allegations, " but merely asserting "labels and conclusions' or a formulaic recitation of the elements of a cause of action'" is not sufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, a claim will not be dismissed if it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face, " meaning that the court can reasonably infer "that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted). In sum, at the motion to dismiss stage, "[t]he issue is not whether a plaintiff will ultimately prevail but whether [he] is entitled to offer evidence to support the claims." Cervantes v. City of San Diego, 5 F.3d 1273, 1274-75 (9th Cir. 1993) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (emphasis in original).

"As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation and internal quotation marks omitted). If the district court relies on materials outside the pleadings submitted by either party to the motion to dismiss, the motion must be treated as a Rule 56 motion for summary judgment. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). Two exceptions to this rule exist. First, the court may consider extrinsic material "properly submitted as part of the complaint, " meaning documents either attached to the complaint or upon which the plaintiff's complaint necessarily relies and for which authenticity is not in question. Lee, 250 F.3d at 688 (citation omitted). Second, the court "may take judicial notice of matters of public record." Id . (citation and internal quotation marks omitted).

B. Motion for Summary Judgment

Summary judgment is appropriate 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); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering the propriety of summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). If the movant has carried its burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts.... Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation marks omitted).


A. Defendants' Motion to Dismiss

Defendants make three arguments in their motion to dismiss. First, they argue that Plaintiff's discrimination and retaliation claims are barred by a previous settlement. Second, Defendants contend that Plaintiff did not exhaust his administrative remedies with respect to Count II. Third, Defendants argue that Plaintiff cannot sue state officials in their official capacities for damages in an action brought pursuant to 42 U.S.C. § 1983. Each argument is addressed below.

At the outset, however, the Court notes that Plaintiff stated in his response brief that Count II was mistakenly included in his complaint and should be dismissed. Resp. Mot. Dismiss at 2, ECF No. 26. Plaintiff confirmed this at the motion hearing. Accordingly, Count II is dismissed with prejudice.

1. The Previous Settlement

Defendants argue that the religious and racial discrimination claims in the complaint, which arose in 2011, are precluded by a settlement relating to a prior case brought by Plaintiff in 2009. See Mot. Dismiss at 4, 7-11, Ex. B, ECF No. 17. The Court will consider the settlement agreement and prior complaint in connection with the Motion to Dismiss. These documents are properly incorporated by reference because despite the fact that their contents are not alleged in the instant complaint, Plaintiff's claim depends on them, they are attached to the motion to dismiss, and the parties do not dispute their authenticity. Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005).

The prior complaint was filed in Mitchell v. Skolnik, no. 2:09-cv-02377-KJD-PAL (the "2009 Action"). See Mot. Dismiss Ex. B. The prior complaint alleges that Plaintiff's civil rights were violated in 2009 by officials employed by the Nevada State Prison (NSP) and SDCC. Id. at 1-5. On December, 15, 2011, Plaintiff and the defendants in the 2009 Action entered into a settlement agreement (the "Prior Settlement") through which they agreed to "release and forever discharge" the defendants, as well as the State of Nevada and its officers and employees, from "any and all claims, actions, causes of action, suits, proceedings, demands, damages, costs, expenses and fees, whether known or unknown, arising out of and relating to the alleged violations of Plaintiff's civil rights which serve as the basis for this litigation." Mot. Dismiss Ex. B ("Prior Settlement") at 3-4. The settlement also stated that the parties would not commence any other action "on account of any matter or claims arising out of the facts and claims as hereinbefore set forth." Id. at 5.

In their motion to dismiss, Defendants argue that the Prior Settlement bars Plaintiff's claims in this case as asserted in Counts II, III, and V of the current complaint. Defendants' argument, which was further developed at the motion hearing, is essentially that these claims "arise out of" or are "related to" the civil rights claims that Plaintiff agreed to release in the settlement. Defendants rely on the fact that the Prior Settlement was signed by both parties in December of 2011-after the alleged violations which serve as the basis for Counts II, III and V of the instant complaint. In addition, Defendants point out that Plaintiff made references to ongoing litigation in grievances filed in 2011 which serve as the partial basis for the instant litigation. These references, Defendants argue, demonstrate that Plaintiff was aware that the settlement agreement would encompass the claims presented in Counts II, III, and V.

In most cases, "the construction and enforcement of settlement agreements are governed by principles of local law which apply to interpretation of contracts generally, " even when the action involves federal claims. Jones v. McDaniel, 717 F.3d 1062, 1067 (9th Cir. 2013) (citations and quotation marks omitted). Under Nevada law, if a release is unambiguous the court must construe it from the contractual language. In re Amerco Derivative Litig., 252 P.3d 681, 693 (Nev. 2011). Ordinarily, release terms do not apply to future causes of action unless the contract expressly says so. In re Amerco, 252 P.3d at 698. The ultimate goal is to effectuate the parties' intent, but when the intent is not clearly expressed in the contractual language, a court may also consider the surrounding circumstances of the agreement. Id . "A contract is ambiguous when it is subject to more than one reasonable interpretation. Any ambiguity, moreover, should be construed against the drafter." Anvui, LLC v. G.L. Dragon, LLC, 163 P.3d 405, 407 (Nev. 2007).

The Court finds that the Prior Settlement does not bar the claims in the current lawsuit for several reasons. First, the settlement agreement is unambiguous in what it encompasses: a release of the claims alleged in the 2009 Action as well as any potential claims Plaintiff could have brought that arose out of the allegations in the 2009 Action. The agreement contains no statement that would indicate that both parties intended that Plaintiff would release later-arising claims based on further alleged violations, nor does it include language clearly indicating that the parties intended that the agreement would preclude litigation based on grievances Plaintiff filed in 2011.

Second, to the extent that the agreement contains any ambiguity, the Court can find no indication or extrinsic evidence supporting the assertion that both parties understood the agreement to release Plaintiff's 2011 claims. On the contrary, Plaintiff stated in his brief and at oral argument that he was litigating multiple actions against NDOC officials during the time period between commencing the Mitchell v. Skolnik action and the signing of the Prior Settlement, and has been successful in at least some of his claims. Defendants have not attempted to refute these statements. This evidence suggests that it is unlikely that Plaintiff understood the settlement agreement to release anything more than those claims he brought against NDOC officials in the 2009 Action and those that he could have brought at that time. The evidence of multiple lawsuits also weakens Defendants' argument that Plaintiff, by referencing the fact that he was fighting NDOC in court in grievances he filed in 2011 relating to his current claims, demonstrated that he understood ...

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