United States District Court, D. Nevada
C. MAHAN UNITED STATES DISTRICT JUDGE.
before the court is a motion to dismiss filed by defendants
State of Nevada, Nevada Department of Corrections, Joshua
Pidilla, Christopher Day, Amy Calderwood, Homer Palalay,
Manuel Portillo, Joshua Wikoff, Kyle Groover, Sean Williams,
Bruce Martin, and Jeremy Bean. (ECF No. 73). Pro se
plaintiff Victor Tagle filed a response (ECF No. 75), to
which defendants replied (ECF No. 76).
a civil rights action under 42 U.S.C. § 1983, arising
from events that took place while plaintiff was incarcerated
at High Desert State Prison (“HDSP”). At all
times relevant to this action, plaintiff was in the custody
of the Nevada Department of Corrections (“NDOC”).
8, 2015, the court ordered that pursuant to its screening
order (ECF No. 3), the action “shall proceed on the
portion of count I, alleging excessive force, against
defendant Day and count III, alleging due process, against
defendants Wikoff, Portillo, Calderwood, Martin, Palazzo,
Bean, Groover, Williams, Palaloy, and Padilla.” (ECF
instant motion, defendants move for dismissal or summary
disposition of the complaint pursuant to Federal Rules of
Civil Procedure 12(b) and 56 based on plaintiff's failure
to exhaust his administrative remedies under the Prison
Litigation Reform Act of 1996 (“PLRA”). (ECF No.
initial matter, “an unenumerated motion under Rule
12(b) is not the appropriate procedural device for pretrial
determination of whether administrative remedies have been
exhausted under the PLRA.” Albino v. Baca, 747
F.3d 1162, 1168 (9th Cir. 2014) (citing 42 U.S.C. §
1997e(a)). Rather, “[t]o the extent evidence in the
record permits, the appropriate device is a motion for
summary judgment under Rule 56.” Id.
Accordingly, the court construes the instant motion as a
motion for summary judgment under Rule 56.
Federal Rules of Civil Procedure allow summary judgment 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 a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). 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).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
non-moving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
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).
contrast, when the non-moving 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 non-moving party's case; or (2)
by demonstrating that the non-moving 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 non-moving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
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. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
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 ...