United States District Court, D. Nevada
D. George United States District Judge
plaintiff, Malcom Gray, brought this action alleging a First
Amendment freedom of religion claim against the defendant,
Warden Dwight Neven. Neven now moves for summary judgment
(ECF No. 21), which Gray opposes (ECF No. 25). Having
reviewed the pleadings and papers, as well as the admissible
evidence, the Court will grant the defendant's motion for
for Summary Judgment
considering a motion for summary judgment, the court performs
“the threshold inquiry of determining whether there is
the need for a trial-whether, in other words, there are any
genuine factual issues that properly can be resolved only by
a finder of fact because they may reasonably be resolved in
favor of either party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986); United States v.
Arango, 670 F.3d 988, 992 (9th Cir. 2012). To succeed on
a motion for summary judgment, the moving party must show (1)
the lack of a genuine issue of any material fact, and (2)
that the court may grant judgment as a matter of law. Fed. R.
Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Arango, 670 F.3d at 992.
material fact is one required to prove a basic element of a
claim. Anderson, 477 U.S. at 248. The failure to
show a fact essential to one element, however,
"necessarily renders all other facts immaterial."
Celotex, 477 U.S. at 323. Additionally, “[t]he
mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient.”
United States v. $133, 420.00 in U.S. Currency, 672
F.3d 629, 638 (9th Cir. 2012) (quoting Anderson, 477
U.S. at 252).
plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S.
at 322. “Of course, a party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, ' which it believes demonstrate the
absence of a genuine issue of material fact.”
Id., at 323. As such, when the non-moving party
bears the initial burden of proving, at trial, the claim or
defense that the motion for summary judgment places in issue,
the moving party can meet its initial burden on summary
judgment "by 'showing'-that is, pointing out to
the district court-that there is an absence of evidence to
support the nonmoving party's case." Id.,
at 325. Conversely, when the burden of proof at trial rests
on the party moving for summary judgment, then in moving for
summary judgment the party must establish each element of its
the moving party meets its initial burden on summary
judgment, the non-moving party must submit facts showing a
genuine issue of material fact. Fed. R. Civ. Pro. 56(e);
Nissan Fire & Marine Ins. Co. v. Fritz Companies,
Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). As summary
judgment allows a court "to isolate and dispose of
factually unsupported claims or defenses, "
Celotex, 477 U.S. at 323-24, the court construes the
evidence before it "in the light most favorable to the
opposing party." Adickes v. S. H. Kress &
Co., 398 U.S. 144, 157 (1970). The allegations or
denials of a pleading, however, will not defeat a
well-founded motion. Fed. R. Civ. Pro. 56(e); Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586-87 (1986). That is, the opposing party cannot
“‘rest upon the mere allegations or denials of
[its] pleading' but must instead produce evidence that
‘sets forth specific facts showing that there is a
genuine issue for trial.'” Estate of Tucker v.
Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008)
(quoting Fed. R. Civ. Pro. 56(e)).
complaint, Gray alleged that on Saturday, October 26, 2013,
he was in the High Desert State Penitentiary Chapel attending
services. During the services, a corrections officer ordered
him to leave the services and to report to work. In response
to Gray's request, the corrections officer asserted the
decision was being made by a sergeant or a lieutenant. He
asserts this violated a central tenet of his religion, namely
a proscription against work on the Sabbath day.
following day, Gray filed a grievance asserting his right to
practice his religion was violated by the order to leave the
services. Neven denied the grievance.
argues that the prison's records indicate that Gray was
not scheduled for work duty on October 26, 2013, but was on
the call out to attend chapel services. As such, he argues
that there is a lack of any evidence that Gray was required
to work on October 26, 2013.
further argues that, even assuming Gray was at chapel
services, and was instructed to leave the services and report
to work, Gray cannot maintain a freedom of religion claim
against him because (a) Gray cannot show Neven personally
participated in the alleged violation, (b) Gray cannot show
Neven is liable as a supervisor for the actions of the
officers who required Gray to leave the services and report
to work, (c) Gray cannot show that he was subjected to a
“substantial burden” upon the practice of his
religion, (d) Gray cannot show that a prohibition against
working on the Sabbath day was a central tenet of Gray's
religious beliefs at the time of the alleged incident, (e)
Gray was provided a suitable alternative to practicing his
religion, and (f) Neven is entitled to qualified immunity.
Gray was ordered to leave a religious service on his Sabbath
day, and to work on that date, and further assuming that a
central tenet of Gray's religious belief was a
proscription against performing any work on the Sabbath day,
his claim fails because he has not shown that the events of
October 26, 2013, constituted a substantial burden on his
practice of his religion. Gray was ordered to leave one
service, and to perform work on a single day that Gray