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Alexander v. Dutton

United States District Court, D. Nevada

March 17, 2017

GARY DUTTON, Defendant.



         I. SUMMARY

         Before the Court is the Report and Recommendation of United States Magistrate Judge William G. Cobb (ECF No. 31) (“R&R”) relating to Defendant's Motion for Summary Judgment (“Motion”) (ECF No. 19). The Court has reviewed Plaintiff's objection (ECF No. 32) and Defendant's response (ECF No. 34).[1] For the reasons discussed below, the Court accepts and adopts the R&R in full.


         Plaintiff, who is proceeding pro se, is an inmate in the custody of the Nevada Department of Corrections (“NDOC”). After screening pursuant to under 28 U.S.C. § 1915A, the Court permitted Plaintiff to proceed on one claim under the Fourth Amendment for the intentional deprivation of property, namely Plaintiff's blue jeans. (ECF No. 14.) Defendant moves for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies. (ECF No. 19.) The Magistrate Judge agreed with Defendant and recommends granting summary judgment. (ECF No. 31.) Plaintiff objects to the Magistrate Judge's recommendation. (ECF No. 32.)


         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of Plaintiffs' objection, the Court has engaged in a de novo review to determine whether to adopt Magistrate Judge Cobb's recommendation.

         “The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when “the movant shows 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982).


         Defendant seeks summary judgment under the Prison Litigation Reform Act (“PLRA”), which provides that “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Defendant argues that NDOC records show Plaintiff did not file any grievance relating to his claimed intentional deprivation of his jeans. (ECF No. 19-1 at 2-3.) Plaintiff responds that he was afraid of reprisal or physical harm if he filed a grievance because of Defendant's open display of racism. (ECF No. 28 at 3.) The Magistrate Judge found that Plaintiff has not shown that his failure to exhaust NDOC's grievance process was excusable under the test that the Ninth Circuit Court of Appeals has adopted in McBride v. Lopez, 807 F.3d 982 (9th Cir. 2015). (ECF No. 31 at 7-9.) That test requires the following conditions to be satisfied:

         In McBride, the Ninth Circuit addressed whether a threat of retaliation may be sufficient to render an administrative remedy “effectively unavailable” to excuse a failure to exhaust. McBride, 807 F.3d at 986-87. The court adopted the Eleventh Circuit's test, which requires the following conditions be satisfied: “(1) the threat [of retaliation] actually did deter the plaintiff inmate from lodging a grievance or pursuing a particular part of the process; and (2) the threat is one that would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.” Id. at 987 (quoting Turner v. Burnside, 541 F.3d 1077, 1085 (11th Cir.2008)).

         Plaintiff argues that Defendant's use of racial slur - calling Plaintiff the derogatory “N” word - deterred him from pursuing NDOC's grievance process.[2] (ECF No. 32 at 1-5.) There is no question that the racial epithet is extremely offensive, particularly given Plaintiff's race and the historical use of the slur. Even assuming that Defendant's alleged conduct satisfies the first prong of the McBride test, use of the racial slur alone, without more, would not deter a reasonable inmate from filing a grievance to satisfy the objective prong of the test. The Court thus agrees with the Magistrate Judge that Plaintiff's failure to exhaust his administrative remedies is not excusable.

         In his objection, Plaintiff also argues that his failure to exhaust is excusable because NDOC's procedural rules, which appear in Administrative Regulation (“AR”) 740, do not require him to file a grievance on deprivation of his personal property. (ECF No. 32 at 8-10.) As Defendant correctly pointed out, Plaintiffs reading of AR 740.03 is selective. AR 740.03(1) provides that inmates may use the grievance procedure to resolve claims involving “personal property, ” which is the claim raised in this case.

         In sum, the Court agrees with the Magistrate Judge that Plaintiff failed to exhaust his administrative remedies and ...

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