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, 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
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.)
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.
thorough review, the court recommends that Kersten's
motion be granted.
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.
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
moves for summary judgment arguing that Plaintiff failed to
properly exhaust his administrative remedies relative to the
claims proceeding in this action.
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).
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 ...