United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
before the Court is a Motion for Summary Judgment, (ECF No.
53), filed by pro se Plaintiff Francis Johnson
(“Plaintiff”). Defendants Officer Miguel Flores-Nava,
Jennifer Nash, and Sheryl Foster (collectively
“Defendants”) filed a Response, (ECF No. 59).
Plaintiff did not file a reply, and the deadline to do so has
pending before the Court is Defendants' Motion for
Summary Judgment, (ECF No. 56). Plaintiff filed a Response
(ECF No. 60), and Defendants filed a Reply, (ECF No.
63).For the reasons discussed below,
Plaintiff's Motion is DENIED, and Defendants' Motion
case arises out of a prisoner's First Amendment
retaliation claim pursuant to 42 U.S.C. § 1983.
(See Screening Order 5:13-19, ECF No. 18). Plaintiff
is an inmate in the lawful custody of the Nevada Department
of Corrections (“NDOC”). (Defs.' Mot. Summ.
J. (“Defs.' MSJ”) 2:23-24, ECF No. 56).
Plaintiff brings this suit against Defendants for events that
took place during Plaintiff's incarceration at High
Desert State Prison (“HDSP”). (Am. Compl. at 1,
ECF No. 19).
February 28, 2013, Officer Miguel Flores-Nava (“Officer
Flores-Nava”), an HDSP correctional officer, conducted
a search of Plaintiff's cell and confiscated
Plaintiff's beard trimmers as unauthorized property. (Ex.
I to Defs.' MSJ at 2 (“Disciplinary
Records”), ECF No. 56-9). According to Plaintiff,
Officer Flores-Nava did this despite being advised by the
property room sergeant that the trimmers were part of a
property settlement with Plaintiff. (Am. Compl. at 4).
Plaintiff also claims that following the search, Officer
Flores-Nava told Plaintiff that he intended to file a notice
of charges and have Plaintiff transferred to the disciplinary
unit, lose his job status, and lose his wages. (Id.
at 4-5). Plaintiff contends that he asked Officer Flores-Nava
why he was doing this, and Officer Flores-Nava responded that
it was because “[Plaintiff] like[d] filing grievances
and lawsuits on officers and if [he didn't] like it, [he
should] take it up with the disciplinary officer.”
(Id. at 5). Officer Flores-Nava then allegedly
warned Plaintiff to “stop filing grievances and
lawsuits.” (Id.). Although Officer Flores-Nava
admits speaking with Plaintiff following the search, Officer
Flores-Nava denies making these statements. (See
Flores-Nava Decl. ¶¶ 8-10, Ex. C to Defs.' MSJ,
ECF No. 56-3). Subsequently, Officer Flores-Nava filed a
notice of charges for possession of unauthorized property
against Plaintiff. (Disciplinary Records at 2). Plaintiff was
served with this notice on March 5, 2013. (Id.).
same day, Plaintiff alleges he met with a caseworker who
informed Plaintiff that he was terminated from his work
assignment in the infirmary and would consequently be demoted
from a Level I designation and transferred to a Level II
housing unit. (Ex. L to Defs.' MSJ (“Grievance
Issue 58154”) at 5, ECF No. 56-12); (see also
Ex. H to Defs.' MSJ, ECF No. 56-8) (requiring Level I
inmates to be discipline free for ninety-days and to maintain
a work assignment in order to remain at Level I). On March
11, 2013, Plaintiff was reassigned to a Level II housing
unit. (See Ex. A. to Defs.' MSJ, ECF No. 56-1);
(see also Nash Decl. ¶ 6, Ex. D to Defs.'
MSJ, ECF No. 56-4).
April 2, 2013, Plaintiff appeared at a disciplinary hearing
regarding Officer Flores-Nava's notice of charges.
(Disciplinary Records at 4). The presiding hearing officer
confirmed that the trimmers were Plaintiff's property and
dismissed the charges against Plaintiff. (See Id. at
4-6); (see also Grievance Issue 58154 at 17, 30-31).
to Plaintiff, on April 10, 2013, he informed Trinity Pharris
(“Pharris”), an HDSP caseworker, that the notice
of charges had been dismissed and requested reinstatement
back to his work assignment. (Am. Compl. at 6). Plaintiff
further claims that on April 17, 2013, Pharris told Plaintiff
that she planned to find him the “worst possible job
assignment.” (Id. at 7). Plaintiff alleges
that when he told Pharris she did not have the authority to
change his classification, Pharris replied: “[Y]ou are
right . . . but since you like filing lawsuits and grievances
I can transfer you to [Level III, the disciplinary unit, ]
and that will change your classification.”
(Id.). Plaintiff was subsequently transferred to the
disciplinary unit. (Id.).
result of these events, Plaintiff filed two separate
grievance issues: Grievance Issue 2006-29-60267
(“Grievance Issue 60267”) and Grievance Issue
58154. (See Ex. M to Defs.' MSJ, ECF No. 56-13).
26, 2014, Plaintiff filed this action in state court.
(Compl., Ex. A to Notice of Removal, ECF No. 1-2). Defendants
NDOC and Officer Flores-Nava subsequently removed the action
to this Court on September 3, 2014. (Not. of Removal, ECF No.
1). On December 22, 2014, Plaintiff filed an Amended
Complaint adding Pharris,  Associate Warden Jennifer Nash
(“Nash”), and Deputy Director Sheryl Foster
(“Foster”) as defendants. (Am. Compl. at
1-3). Plaintiff claims that Nash is liable for her
subordinates' actions because she failed to rectify their
actions after Plaintiff filed an informal grievance with her
about this issue. (Id. at 9). Plaintiff similarly
alleges that Foster is liable because she failed to rectify
Plaintiff's situation after Plaintiff filed a first level
grievance with her. (Id. at 11). Based on these
allegations, Plaintiff alleges First Amendment retaliation
against all defendants. (Id. at 11, 14). In the
instant Motion, (ECF No. 56), Defendants Officer Flores-Nava,
Nash, and Foster seek summary judgment on this claim.
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
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.