United States District Court, D. Nevada
JAMES C. KELLEY, Plaintiff,
DR. KAREN GEDNEY, et. al, Defendants.
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is made to the Honorable Miranda M.
Du, 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 IB 1-4.
the court is the Motion to Dismiss/Motion for Summary
Judgment filed by Defendants Dr. Karen Gedney and Shannon
Moyle. (ECF Nos. 23, 24; Exhibits at 23-1 to 23-23-8, 24-1 to
24-8, and 25-1 to 25-5 (filed under seal).) Plaintiff filed a
response (ECF No. 37), and Defendants filed a reply (ECF No.
thorough review, the court recommends that Defendants'
motion be granted on the basis that Plaintiff failed to
exhaust available administrative remedies.
is an inmate in the custody of the Nevada Department of
Corrections (NDOC), proceeding pro se with this action
pursuant to 42 U.S.C. § 1983. (Pl.'s CompL, ECF No.
4.) The events giving rise to this action took place while
Plaintiff was housed at Northern Nevada Correctional Center
(NNCC). (Id.) Defendants are Dr. Karen Gedney,
Nursing Director Jonathan Perry, and NNCC Grievance Coordinator
Shannon Moyle. (Id)
screening, Plaintiff was allowed to proceed with claims that
Defendants were deliberately indifferent to his serious
medical needs in violation of the Eighth Amendment based on
allegations that Dr. Gedney failed to treat his hepatitis-C
and refused to refer him for surgery for his hernia, and that
Perry and Moyle denied his grievances on these issues.
(See Screening Order, ECF No. 3.)
move for summary judgment arguing: (1) Plaintiff failed to
properly exhaust his administrative remedies; (2) Shannon
Moyle did not personally participate in the alleged Eighth
Amendment violation; and (3) there is no evidence Dr. Gedney
was deliberately indifferent to Plaintiffs hernia or
Defendants' titled their motion as one for dismissal or
summary judgment, all of their arguments rely on evidence
outside of the complaint; therefore, the court will treat it
as a motion for summary judgment. See Swartz v. KPMG
LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam) (the
court will "consider only allegations contained in the
pleadings, exhibits attached to the complaint, and matters
properly subject to judicial notice"); Lee v. City
of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).
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 admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A), (B).
party relies on an affidavit or declaration to support or
oppose a motion, it "must be made on personal knowledge,
set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the
matters stated." Fed.R.Civ.P. 56(c)(4).
evaluating whether or not summary judgment is appropriate,
three steps are necessary: (1) determining whether a fact is
material; (2) determining whether there is a genuine dispute
as to a material fact; and (3) considering the evidence in
light of the appropriate standard of proof. See Anderson, 477
U.S. at 248-250. As to materiality, only disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment;
factual disputes which are irrelevant or unnecessary will not
be considered. Id. at 248.
deciding a motion for summary judgment, the court applies a
burden-shifting analysis. "When the party moving for
summary judgment would bear the burden of proof at trial,
'it must come forward with evidence which would entitle
it to a directed verdict if the evidence went uncontroverted
at trial.'...In such a case, the moving party has the
initial burden of establishing the absence of a genuine
[dispute] of fact on each issue material to its case."
C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc.,
213 F.3d 474, 480 (9th Cir. 2000) (internal citations
omitted). In contrast, when the nonmoving party bears the
burden of proving the claim or defense, the moving party can
meet its burden in two ways: (1) by presenting evidence to
negate an essential element of the nonmoving party's
case; or (2) by demonstrating the nonmoving party failed to
make a showing sufficient to establish an element essential
to that party's case on which that party will bear the
burden of proof at trial. See Celotex Corp. v.
Cartrett, 477 U.S. 317, 323-25 (1986).
moving party satisfies its initial burden, the burden shifts
to the opposing party to establish that a genuine dispute
exists as to a material fact. See Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish
the existence of a genuine dispute of material fact, the
opposing party need not establish a genuine dispute of
material fact conclusively in its favor. It is sufficient
that "the claimed factual dispute be shown to require a
jury or judge to resolve the parties' differing versions
of the truth at trial." T.W. Elec. Serv., Inc. v.
Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th
Cir. 1987) (quotation marks and citation omitted).
"Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no 'genuine issue for trial.'"
Matsushita Elec. Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citation omitted). The
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations that are unsupported by
factual data. Id. Instead, the opposition must go
beyond the assertions and allegations of the pleadings and
set forth specific facts by producing competent evidence that
shows a genuine dispute of material fact for trial.
Celotex, 477 U.S. at 324.
[i]f a party fails to properly support an assertion of fact
or fails to properly address another party's assertion of
fact as required by Rule 56(c), the court may: (1) give an
opportunity to properly support or address the fact; (2)
consider the fact undisputed for purposes of the motion; (3)
grant summary judgment if the motion and supporting
materials-including the facts considered undisputed-show that
the movant is entitled to it; or (4) issue any other
Fed. R Civ. P. 56(e).
summary judgment, the court's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine dispute of material fact for trial.
See Anderson, 477 U.S. at 249. While the evidence of
the nonmovant is "to be believed, and all justifiable
inferences are to be drawn in its favor, " if the
evidence of the nonmoving party is merely colorable or is not
significantly probative, summary judgment may be granted.
Id. at 249-50 (citations omitted).
Prison Litigation Reform Act (PLRA) provides that "[n]o
action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law,
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).
An inmate must exhaust his administrative remedies
irrespective of the forms of relief sought and offered
through administrative avenues. Booth v. Churner,
532 U.S. 731, 741 (2001).
failure to exhaust administrative remedies is '"an
affirmative defense the defendant must plead and
prove.'" Albino v. Baca, 747 F.3d 1162,
1166 (9th Cir. 2014) (quoting Jones v. Bock, 549
U.S. 199, 204, 216 (2007)), cert, denied., 135 S.Ct.
403 (Oct. 20, 2014). Unless the failure to exhaust is clear
from the face of the complaint, the defense must be raised in
a motion for summary judgment. See Id. (overruling in
part Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir.
such: "If undisputed evidence viewed in the light most
favorable to the prisoner shows a failure to exhaust, a
defendant is entitled to summary judgment under Rule 56. If
material facts are disputed, summary judgment should be
denied, and the district judge rather than a jury should
determine the facts [in a preliminary proceeding]."
Id., 1168, 1170-71 (citations omitted).
"Exhaustion should be decided, if feasible, before
reaching the merits of a prisoner's claim. If discovery
is appropriate, the district court may in its discretion
limit discovery to evidence concerning exhaustion, leaving
until later-if it becomes necessary-discovery related to the
merits of the suit." Id. at 1170 (citation
omitted). If there are disputed factual questions, they
"should be decided at the very beginning of the
litigation." Id. at 1171.
defendant shows that the plaintiff did not exhaust available
administrative remedies, the burden shifts to the plaintiff
"to come forward with evidence showing that there is
something in this particular case that made the existing and
generally available administrative remedies effectively
unavailable to him." Id. at 1172 (citations
omitted). The ultimate burden of proof, however, remains with
the defendant. Id.
cannot be satisfied by filing an untimely or otherwise
procedurally infirm grievance; rather, the PLRA requires
"proper exhaustion." Woodford v. Ngo, 548
U.S. 81, 89 (2006). "Proper exhaustion" refers to
"using all steps the agency holds out, and doing so
properly (so that the agency addresses the issue on
the merits)." Id. (citation omitted). Thus,
"[s]ection 1997e(a) requires an inmate not only to
pursue every available step of the prison grievance process
but also to adhere to the 'critical procedural rules'
of that process. Reyes v. Smith, 810 F.3d 654, 657
(9th Cir. 2016) (quoting Woodford v. Ngo, 548 U.S.
81, 90 (2006)). "[I]t is the prison's requirements,
and not the PLRA, that define the boundaries of proper
exhaustion." Jones, 549 U.S. at 218. That being
said, an inmate exhausts available remedies "under the
PLRA despite failing to comply with a procedural rule if
prison officials ignore the procedural problem and render a
decision on the merits of the grievance at each available
step of the administrative process." Reyes, 810
F.3d at 658.
reiterate, an inmate need only exhaust "available"
administrative remedies. See Ross v. Blake, 136
S.Ct. 1850, 1858 (2016). "Accordingly, an inmate is
required to exhaust those, but only those, grievance
procedures that are 'capable of use' to obtain
'some relief for the action complained of"
Id. at 1859 (quoting Booth, 532 U.S. at
court concludes that administrative remedies have not been
properly exhausted, the unexhausted claim(s) should be
dismissed without prejudice. Wyatt, 315 F.3d at
1120. If the court finds that the prisoner has exhausted
available administrative remedies or that the administrative
remedies were not available to him, the case may proceed on
the merits. Albino, 747F.3d at 1171.