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 Robert C.
Jones, 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 the Motion for Summary Judgment of defendants
Boardman, Fillman, Jones, Rigney, and Werber. (ECF No. 53;
Exhibits at 53-1 to 53-20.) On February 28, 2017, the court
issued an order advising that Defendants had filed motions
for summary judgment (ECF Nos. 48, 53), which Plaintiff had
failed to oppose. (ECF No. 57.) The court gave Plaintiff an
additional twenty days to file a response to the motions.
(Id.) On April 3, 2017, Plaintiff filed a motion for
extension of time to respond to the motions for summary
judgment. (ECF No. 58.) The following day, the court granted
Plaintiff's motion, giving him up to May 5, 2017, to file
a response to the motions. (ECF No. 59.) As of the date of
this Report and Recommendation, no response has been filed.
thorough review, it is recommended that the motion be granted
and that judgment be entered in favor of these defendants.
is an inmate within the Nevada Department of Corrections
(NDOC), proceeding pro se with this action pursuant to 42
U.S.C. § 1983. The allegations giving rise to the
complaint took place while Plaintiff was housed at Ely State
Prison (ESP). (Compl., ECF No. 4.)
filed his original complaint on April 3, 2015, which the
court screened and directed to be filed on November 13, 2015.
(ECF Nos. 1-1, 3, 4.) He was given leave to amend to correct
certain deficiencies in the complaint, but failed to file an
amended complaint within the prescribed time period;
therefore, the court ordered that the action would proceed on
the claims identified in the screening order. (ECF No. 5.)
complaint, Plaintiff alleges that on September 25, 2014, he
was in an altercation with another correctional officer,
which resulted in him being shot and taken to the infirmary
at approximately 9:30 p.m., but this event is not the subject
of this action. (ECF No. 4 at 9.) At approximately 11:30
p.m., Plaintiff claims that defendant Werber opened
Plaintiff's cell door and allowed C.E.R.T. Officers
Pinkham, Rigney, Green, Boardman, Parr and Deeds to beat up
Plaintiff unnecessarily. (Id. at 7, 9-10.) He
alleges that Deeds grabbed him and squeezed his throat, while
Pinkham, Boardman and Parr tackled him to the floor and
started to kick him and punch him in the mouth and nose.
(Id. at 9.) Rigney, Green, Pinkham, Parr and Deeds
then began stomping on him while he was on the floor,
handcuffed behind his back and not resisting. (Id.
at 10.) Werber failed to intervene, and when Plaintiff tried
to exit his cell, Werber pushed him back in and the abuse
continued. (Id.) Plaintiff claims he suffered
injuries including a black eye, bruised ribs, numbness to the
hands and wrists, injury to the nose, migraine headaches and
difficulty breathing. (Id. at 11.)
avers that Nurse A. Scott came to his cell and Scott agreed
with another officer not to provide Plaintiff with any aid.
(Id.) He claims that Scott refused to treat
Plaintiff, and instead left him on the floor bleeding.
(Id. at 11-12.) Plaintiff also contends that Nurse
Jones failed to remove shotgun pellets from Plaintiff.
(Id. at 14.)
on to allege that on September 26, 2014, Associate Warden
Michael Fletcher ordered Correctional Officer Fillman to
clean up blood from Plaintiff's injuries from the
previous night's attack, and Fletcher choked and
threatened Plaintiff before leaving his cell. (Id.
at 8, 15-16.) Fillman failed to intervene. (Id. at
court allowed Plaintiff to proceed with an excessive force
claim based on the allegation that he was attacked in his
cell by Deeds, Rigney, Green, Pinkham, Boardman and Parr, and
an Eighth Amendment claim against Werber for failing to
intervene. He was also allowed to proceed with an Eighth
Amendment claims against Scott and Jones for deliberate
indifference to a serious medical need based on the alleged
failure to provide medical treatment. In addition, the court
found Plaintiff stated colorable Eighth Amendment claims
against Fletcher and Fillman based on the allegations that
Fletcher choked Plaintiff, and Fillman watched without
intervening. (ECF No. 3.)
Fletcher, Pinkham and Scott were dismissed without prejudice
because Plaintiff failed to timely serve them pursuant to
Federal Rule of Civil Procedure 4(m). (See ECF No.
50.) In addition, summary judgment was granted to defendant
Parr on the basis that he was not present on the date
Plaintiff alleged Parr used excessive force against him.
(Id.) The undersigned has separately recommended
that summary judgment be granted in favor of Deeds because he
was not present when the events in question are alleged to
have taken place. Therefore, the remaining defendants who
move for summary judgment now are: Rigney, Boardman, Werber,
Jones and Fillman.
defendants argue that Plaintiff failed to exhaust his
administrative remedies insofar as Jones and Werber are
concerned, and in any event, none of the events alleged by
Plaintiff ever transpired such that each of them is entitled
to summary judgment. (ECF No. 53.)
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court." Northwest Motorcycle Ass'n v. U.S.
Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994)
(citation omitted). In considering a motion for summary
judgment, all reasonable inferences are drawn in favor of the
non-moving party. In re Slatkin, 525 F.3d 805, 810
(9th Cir. 2008) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)). "The court shall
grant summary judgment if the movant shows 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). On the other hand, where reasonable minds could differ
on the material facts at issue, summary judgment is not
appropriate. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986).
asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce ...