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McNair v. Kersten

United States District Court, D. Nevada

June 7, 2017

CLARENCE MCNAIR, Plaintiff,
v.
R. KERSTEN, et al., Defendants.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE

         This Report and Recommendation is made to the Honorable Robert C. Jones, 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 Kersten's Motion for Summary Judgment. (ECF No. 16; Exhibits at ECF Nos. 16-1, 16-2, 16-3.) Plaintiff filed a response (ECF No. 18) and Kersten filed a reply (ECF No. 19). In his motion, Kersten argues that Plaintiff failed to properly exhaust available administrative remedies. Plaintiff subsequently filed a document that he titled a “cross-motion for summary judgment, ” but it also addresses whether he properly exhausted administrative remedies and whether those remedies were available. (ECF No. 21.) The document largely repeats the argument made in his response to Kersten's motion. (ECF No. 21.)

         The cross-motion states that it is made pursuant to Rules 56(e) and 56(f). (ECF No. 21 at 1.) Federal Rule of Civil Procedure 56(e) addresses what the court's options are when a “party fails to properly support an assertion or fact or fails to properly address another party's assertion of fact as required by Rule 56(c).” Fed.R.Civ.P. 56(e). The court can: (1) give the party the opportunity to properly support or oppose the fact; (2) consider the fact undisputed; (3) grant summary judgment if the undisputed facts show that is appropriate; or (4) issue any other appropriate order. Fed.R.Civ.P. 56(e)(1)-(4). Rule 56(f) provides that the court may, independent of a motion for summary judgment filed by a party, and after giving notice and a reasonable time to respond: “(1) grant summary judgment for a nonmovant; (2) grant the motion on grounds not raised by a party; or (3) consider summary judgment on its own after identifying for the parties' material facts that may not be genuinely in dispute.” Fed.R.Civ.P. 56(f)(1)-(3). Rule 56(f) is not applicable here. Therefore, the court construes Plaintiff's filing (ECF No. 21) as Plaintiff's effort to properly further address the assertions of fact made in Kersten's motion for summary judgment under Rule 56(e)(1), and the court has considered it as such in addressing Kersten's motion.

         After a thorough review, the court recommends that Kersten's motion be granted.

         I. BACKGROUND

         Plaintiff 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 Am. Compl., ECF No. 6.) The events giving rise to this action took place while Plaintiff was housed at Northern Nevada Correctional Center (NNCC). (Id.) Defendant is Robert Kersten.

         On screening, Plaintiff was allowed to proceed with an Eighth Amendment claim of deliberate indifference as well as a First Amendment retaliation claim against Kersten. (Screening Order, ECF No. 7.) The claims are based on allegations that after Plaintiff was interviewed by an agent from the Inspector General's Office concerning a sexual harassment complaint Plaintiff had previously filed against Kersten under Prison Rape Elimination Act (PREA), Kersten searched Plaintiff, shoved him, and called him a “handicapped homo, ” “rat” and “snitch” in front of other inmates, and warned him against filing any more civil complaints. He alleges he has since been the target of violent from other inmates who reference Kersten's words.

         Kersten moves for summary judgment arguing that Plaintiff failed to properly exhaust his administrative remedies relative to the claims proceeding in this action.

         II. LEGAL STANDARD

         "The 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).

A party 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).

         If a 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).

         In 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.

         In 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).

         If the 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.

         That being said,

[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 ...

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