United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
Report and Recommendation is made to the Honorable Larry R.
Hicks, Senior United States District Judge. The action was
referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and the Local Rules of Practice,
LR 1B 1-4.
the court is Defendants Renewed Motion for Summary Judgment
Based on Qualified Immunity. (ECF Nos. 104; exhibits at 105,
106, 107, 125; 116; 124.) Plaintiff filed a response. (ECF No.
129, 130 (appendix of exhibits).) Defendants filed a reply.
(ECF No. 131.)
thorough review, the court recommends that Defendants'
motion be denied.
is an inmate in the custody of the Nevada Department of
Corrections (NDOC), who filed this action concerning events
that took place while Plaintiff was housed at Lovelock
Correctional Center (LCC) in the Sixth Judicial District
Court of the State of Nevada, in and for the County of
Pershing, on December 21, 2011. (ECF No. 1-1.) Defendants
removed the action to federal court on January 20, 2012. (ECF
are Tara Carpenter, Ellie Emmanuel, Don Helling, Jack Palmer,
Kirk Widmar, and Greg Cox. (See Screening Order, ECF
No. 7.) Defendant Stephen Clark was dismissed without
prejudice pursuant to a stipulation between the parties. (ECF
Nos. 102, 103.)
complaint, Plaintiff alleges that he is a member of the Pagan
faith group at LCC and in January 2009, he and other Pagan
faith group members were informed that part of the land
authorized for use by the Pagans at LCC would be flattened in
connection with construction projects on buildings, including
housing units 3A and 3B. He claims that the area initially
identified by the LCC administration as being impacted did
not include the sacred portions of the Pagan grounds, so the
Pagans made preparations to accommodate the construction
project. He claims that on October 21, 2009, instead of
flattening only a portion of the grounds, the entirety of the
grounds behind units 3A and 3B were flattened.
learning of the destruction of the grounds, he contends that
he filed multiple grievances, containing one issue per
grievance, as is required under Administrative Regulation
(AR) 740. He subsequently received a notice of charges for
abuse of the inmate grievance process. He was convicted and
sentenced to fifteen days in disciplinary segregation. He
claims that he was identified as one of a group of Pagan
inmates who submitted multiple grievances regarding
destruction of the grounds and it was recommended that he be
transferred to the allegedly more secure and less desirable
High Desert State Prison (HDSP). He was transferred to HDSP
on January 13, 2010, and was ultimately transferred back to
LCC in July 2011.
screening, Plaintiff was allowed to proceed with the
following claims based on those facts: (1) retaliation for
filing grievances; (2) claims under the First Amendment's
Free Exercise Clause and the Religious Land Use and
Institutionalized Persons Act (RLUIPA), 42 U.S.C. §
2000-cc(1); (3) an Equal Protection Clause claim for alleged
discrimination against those of the Pagan faith. (ECF No. 7.)
The Screening Order did not address the viability of the
State law claims or the federal conspiracy claim brought
pursuant to 42 U.S.C. §§ 1985, 1986.
10, 2013, Defendants filed their initial motion for summary
judgment, arguing that the disciplinary action taken against
Plaintiff and his transfer to HDSP were based on legitimate
penological reasons, and not because of Plaintiff was filing
grievances or because of his Pagan beliefs. (ECF No. 35.) On
January 13, 2014, the undersigned recommended that insofar as
Plaintiff's response to the motion contained a request
under what is now Federal Rule of Civil Procedure 56(d),
there were insufficient grounds for allowing Plaintiff to
conduct further discovery. (ECF No. 48.) The undersigned
further recommended that Defendants motion be granted. (ECF
No. 48.) On March 7, 2014, District Judge Larry R. Hicks
adopted and accepted the report and recommendation. (ECF No.
53, 64.) Plaintiff appealed the order on March 14,
2014. (ECF Nos. 54, 65.)
March 2, 2016, the Ninth Circuit Court of Appeals issued a
memorandum reversing and remanding the grant of summary
judgment in favor of Defendants. The appellate court
concluded that the district court erred “by concluding
that the evidence presented no genuine issue of material fact
as to whether Plaintiffs abused the prison grievance
process.” (ECF No. 70 at 3.) The Ninth Circuit found
that the “evidence, when viewed in the light most
favorable to Plaintiffs, shows that they had engaged in the
prison's informal resolution procedure before filing
their grievances, that their grievances were not frivolous,
vexatious or duplicative, and that the Defendants failed to
follow their own mandated procedures in punishing
Plaintiffs.” (Id.) While Defendants argued
that AR 740 forbids the filing of duplicative grievances, the
Ninth Circuit pointed out that “AR 740 only limits the
number of ‘unfounded frivolous or vexatious grievances,
' a disputed issue in this case.” (Id.)
The Ninth Circuit also concluded that the district court
abused its discretion in denying the request for a
continuance of summary judgment pending further discovery
under Federal Rule of Civil Procedure 56(d), and stated that
on remand Plaintiffs should be allowed to pursue discovery.
(Id. at 4.)
remand, consistent with the Ninth Circuit's order, the
undersigned directed the parties to meet and confer
concerning what discovery needed to be undertaken, and
subsequently reopened discovery and modified the scheduling
order. (See ECF Nos. 84, 88.)
December 12, 2016, Defendants filed their Renewed Motion for
Summary Judgment Based on Qualified Immunity. Defendants
argue that they did not violate Plaintiff's
constitutional rights, and even when considered in the light
most favorable to Plaintiff, the facts show no violation of a
constitutional right clearly established in law at the time
the conduct occurred. Plaintiff, on the other hand, argues
that Defendants are merely attempting to rehash their motion
for summary judgment on the merits, when the Ninth Circuit
already determined there was a genuine dispute of material
fact precluding summary judgment in Defendants' favor. He
further argues that Defendants were on clear notice that
their conduct violated Plaintiff's constitutional rights.
determining whether an officer is entitled to qualified
immunity, we consider (1) whether there has been a violation
of a constitutional right; and (2) whether that right was
clearly established at the time of the officer's alleged
misconduct.'” Ames v. King County,
Washington, 846 F.3d 340, 347 (9th Cir. 2017) (quoting
Lal v. California, 746 F.3d 1112, 1116 (9th Cir.
2014)). The court may use its discretion to determine which
of the prongs to address first. Id.
immunity attaches when an official's conduct ‘does
not violate clearly established statutory or constitutional
rights of which a reasonable person would have
known.'” White v. Pauly, 137 S.Ct. 548,
551 (2017) (quoting Mullenix v. Luna, 136 S.Ct. at
308). A case directly on point is not required for a right to
be clearly established, but “‘existing precedent
must have placed the statutory or constitutional question
beyond debate.'” Id. “In other
words, immunity protects ‘all but the plainly
incompetent or those who knowingly violate the
established law' should not be defined ‘at a high
level of generality.'” Id. at 552 (quoting
Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
“[T]he clearly established law must be
‘particularized' to the facts of the case.”
Id. (citing Anderson v. Creighton, 483 U.S.
635, 640 (1987)). “Otherwise, ‘[p]laintiffs would
be able to convert the rule of qualified immunity …
into a rule of virtually unqualified liability simply by
alleging violation of extremely abstract rights.'”
Id. (quoting Anderson, 483 U.S. at 639).
Was There a Violation of a Constitutional Right?
the court will address whether there has been a violation of
a constitutional right.
Plaintiff claims that Defendants' motion simply rehashes
its earlier motion for summary judgment on the merits, the
granting of which was reversed by the Ninth Circuit. It is
true that many of Defendants' arguments are similar to
those raised in the original motion, but in arguing they are
entitled to qualified immunity, Defendants are permitted to
argue that there was no violation of a constitutional right.
See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.
2002) (explaining that the rights-violation prong of the
qualified immunity analysis “mirrors the substantive
summary judgment decision on the merits”). Therefore,
the court does not find Defendants' motion should be
denied on this basis.
be discussed in detail below, even after discovery was
reopened pursuant to the Ninth Circuit's direction,
factual disputes still remain concerning whether there was a
violation of Plaintiff's constitutional rights, and
viewing the facts in the light most favorable to Plaintiff, a
reasonable fact-finder could conclude his constitutional
rights were violated. See Chappell v. Mandeville,
706 F.3d 1052, 1057 (9th Cir. 2013) (citations omitted) (when
the court conducts a qualified immunity analysis, it must
view the facts in the light most favorable to the plaintiff).
the following general facts are undisputed: during the
relevant time period, Plaintiff was an inmate housed in
LCC's protective custody (PC) unit, and designated his
faith group as Pagan. The Pagan inmates utilized an area
outside the buildings that housed the PC inmates for worship.
At some point in 2009, the Pagans were informed that the
prison would need to do some work to the exterior of the
housing units adjacent to the Pagan grounds.
October 20, 2009, the exterior work was performed and
resulted in the flattening of the Pagan grounds.
they observed the flattening of the grounds, Plaintiff and
fourteen other Pagan inmates each submitted twenty-one
grievances about various issues concerning the PC Pagan
inmates. Emmanuel consulted with Palmer, and prepared a
memorandum for Helling, recommending that the inmates be
served with a notice of charges for abuse of the prison
grievance process. Helling agreed with the recommendation and
the inmates, including Plaintiff, were served with the notice
of charges. A disciplinary hearing was held with Widmar
serving as the assigned disciplinary hearing officer.
Plaintiff pled not guilty to the charge. Plaintiff gave a
statement explaining that his intent in filing the grievances
in that manner was to exhaust his administrative remedies
prior to filing a lawsuit. He was ultimately convicted of the
charge and sentenced to fifteen days in disciplinary
segregation. He was also transferred to HDSP.
1983 provides a cause of action for prison inmates whose
constitutionally protected activity has resulted in
retaliatory action by prison officials.” Jones v.
Williams, 791 F.3d 1023, 1035 (9th Cir. 2015). Such a
claim consists of the following elements: (1) an assertion
that a state actor took some adverse action against an
inmate; (2) because of; (3) that prisoner's protected
conduct, and that such action (4) chilled the inmate's
exercise of his First Amendment rights, and (5) the action
did not reasonably advance a legitimate correctional goal.
791 F.3d at 1035 (quoting Rhodes v. Robinson, 408
F.3d 559, 567-68 (9th Cir. 2005)). “The First Amendment
guarantees a prisoner a right to seek redress of grievances
from prison authorities as well as a right of meaningful
access to the courts.” Id. (citation omitted).
inmate must submit evidence, either direct or circumstantial,
to establish a link between the exercise of constitutional
rights and the allegedly retaliatory action. Pratt v.
Rowland, 65 F.3d 802, 806-07 (9th Cir. 1995). The
plaintiff “need only ‘put forth evidence of
retaliatory motive, that, taken in the light most favorable
to him, presents a genuine issue of material fact as to [the
defendant's] intent[.]'” Brodheim v.
Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting
Bruce v. Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003)).
Restated, in order to raise a triable issue as to motive, the
plaintiff must offer “either direct evidence of
retaliatory motive or at least one of three general types of
circumstantial evidence [of that motive].” McCollum
v. Ca. Dep't of Corr. and Rehab., 647 F.3d 870, 882
(9th Cir. 2011) (citation and quotation marks omitted).
Circumstantial evidence may include: “(1) proximity in
time between protected [activity] and the alleged
retaliation; (2) [that] the [defendant] expressed opposition
to the speech; [or] (3) other evidence that the reasons
proffered by [the defendant] for the adverse … action
were false and pretextual.” Id. (internal
citation and quotation marks omitted).
do not contest that adverse action was taken against
Plaintiff. Nor do they make an argument concerning the
chilling of Plaintiff's First Amendment rights. Instead,
they argue that Plaintiff cannot establish he was retaliated
against when he was subject to disciplinary sanctions
following the grievance incident because he cannot
demonstrate he was punished because he engaging in protected
activity. They maintain that he was disciplined for
conspiring with other inmates in an organized, group protest.
In addition, they contend that Plaintiff cannot establish
that Defendants' conduct did not reasonably advance the
legitimate correctional goals of safety and security of the
institution when faced with this coordinated effort among the
fourteen inmates. Plaintiff, on the other hand, argues that
the evidence reveals that he was punished not for conspiring
to create an organized group protest, but for filing
as Defendants argue that Plaintiff was not punished for
engaging in First Amendment activity, but for conspiring with
other inmates in an organized group protest, they contend
that Plaintiff admits that NDOC prohibits the filing of a
court notes, however, that Plaintiff was not charged with
filing a petition, but with abuse of the grievance process.
While Plaintiff admits that he knew inmates were not allowed
to file a petition, he went on to testify that is not what he
and the other inmates were doing. (Pl. Decl., ECF No. 129 at
¶¶ 13, 14.) He insists they were following the
rules by filing one issue per grievance so they could exhaust
their administrative remedies before filing a lawsuit.
(See Pl.'s Depo., ECF No. 105 at 19, pp.
60:8-12, 60:21-25; Pl.'s Decl., ECF No. 129 at 19 ¶
14.) Plaintiff explains that they did not want to have an
issue with an inmate who was part of the group not being able
to pursue a claim in the lawsuit for failure to exhaust
administrative remedies; therefore, they exchanged a document
between themselves where each person wrote out the issues
they thought should be included (in the lawsuit), and using
that document agreed on twenty-one issues for which each
inmate needed to file a grievance. (Pl.'s Decl., ECF No.