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Campbell v. Cox

United States District Court, D. Nevada

May 22, 2017

JAMES G. COX, et. al., Defendants.



         This 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.

         Before the court is defendant Terrence Deeds' Motion for Summary Judgment. (ECF No. 48, Exhibits at 48-1 to 48-7.) 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.

         After a thorough review, it is recommended that Deeds' motion be granted and that judgment be entered in his favor.

         I. BACKGROUND

         Plaintiff 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.)

         Plaintiff 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.)

         In the 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.)

         He 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.)

         He goes 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 16.)

         The 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.)

         Green, 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.) Therefore, the remaining defendants are: Deeds, Rigney, Boardman, Werber, Jones and Fillman.

         Deeds now moves for summary judgment, arguing that he was not present on the date when Plaintiff contends he utilized excessive force. (ECF No. 48.) The remaining Defendants have also filed a motion for summary judgment (ECF No. 53), which is addressed in a separate report and recommendation.

         II. ...

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