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 IB 1-4.
the court is Defendant's Motion to Dismiss/Motion for
Summary Judgment. (ECF Nos. 20, 21.) Plaintiff filed a response
(ECF Nos. 24 (response), 25 (affidavit)), Defendant filed
a reply brief. (ECF No. 26.)
thorough review, the court recommends that Defendant's
motion be denied.
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. 7.) The events giving rise to this action took place
while Plaintiff was housed at Northern Nevada Correctional
Center (NNCC). (Id.) Defendant is David Vest.
screening, Plaintiff was allowed to proceed with a single
retaliation claim against Vest. (ECF No. 8.) This claim is
based on allegations that on April 11, 2015, as he left the
dining hall with his Passover meal, Vest and an unknown
officer approached Plaintiff and Vest confiscated his meal.
(ECF No. 7 at 8.) Plaintiff pointed to a sign that indicated
inmates observing Passover were permitted to eat their meals
in their cells. (Id.) Vest then allegedly shoved
Plaintiff against the wall and ripped the sign off of the
wall. (Id.) Plaintiff was then handcuffed, locked in
a holding cell and told, "I hope that your God is happy
now!" (Id.) Plaintiff asserts he was denied
food that day and told he would be locked in the hole if he
filed a complaint. (Id.)
Vest moves for summary judgment arguing that Plaintiff failed
to properly exhaust his administrative remedies before filing
suit, and that Vest did not retaliate against Plaintiff.
Defendant's motion relies on materials outside of the
pleadings, the court will treat die motion as one for summary
judgment. See Lee v. City of Los Angeles, 250 F.3d
668, 688 (9th Cir. 2001); see also 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.").
purpose of summary judgment is to avoid unnecessary trials
when mere 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 me
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 me 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 me material facts at issue, summary judgment is not
appropriate. See Anderson, 477 U.S. at 250.
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, 475 U.S. at 587 (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 ...