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Miller v. Everett

United States District Court, D. Nevada

August 15, 2017

MARK MILLER, Plaintiff,
DAVID EVERETT, et al., Defendants.


         This action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c) and LR IB 2-1. Before the court is defendants' motion for summary judgment (ECF Nos. 67, 69 (sealed)). Plaintiff opposed (ECF No. 76), and defendants replied (ECF No. 79). For the reasons stated below, the court grants defendant's motion for summary judgment (ECF No. 67).


         Mark Miller (“plaintiff”) is an inmate in the custody of the Nevada Department of Corrections (“NDOC”), and currently housed at Northern Nevada Correctional Center (“NNCC”) in Carson City, Nevada. Pursuant to 42 U.S.C. § 1983, plaintiff brings this action against several NDOC and NNCC officials.

         On June 27, 2016, the District Court screened plaintiff's first amended complaint, allowing three counts to proceed: 1) a conditions of confinement claim against defendants Everett, Keast, Baca, Eaton, Aranas, and Meares; 2) a deliberate indifference claim against defendants Everett, Keast, and Baca; and 3) a retaliation claim against defendants Everett, Keast, and Baca. (ECF No. 6.) On December 18, 2016, plaintiff filed a motion for leave to file a second amended complaint (ECF No. 41), which the court granted (ECF No. 43). Plaintiff's second amended complaint was filed on January 17, 2017 and asserts five claims (ECF No. 44). In Count I, plaintiff alleges that defendants Everett, Keast, Baca, Eaton, Aranas, and Mears had knowledge of excessive noise and failed to take corrective action in violation of his Eighth Amendment rights. (Id. at 6-10.) Additionally, in Count I, plaintiff alleges that defendants Everett, Keast, and Baca had knowledge of his need for psychiatric care and refused to provide treatment in violation of his Eighth Amendment rights. (Id. at 10-11.) In Count II, plaintiff asserts that defendants Baca, Clark, and Henderson retaliated against him for filing grievances and pursuing litigation against them by putting him in the “hole” and charging him with disciplinary infractions in violation of his First Amendment rights. (Id. at 19-20.) In Count III, plaintiff alleges that defendants Sexton and Scholfield failed to ensure that he received care from a licensed psychiatrist in violation of his Eighth Amendment rights. (Id. at 21-22.) In Counts IV and V, plaintiff brings state law claims against all defendants pertaining to elder abuse and inhumane treatment. (Id. at 23-24.)

         Defendants now move for summary judgment asserting that: (1) plaintiff failed to exhaust his administrative remedies in regards to his excessive noise claim; (2) plaintiff failed to exhaust his administrative remedies in regards to his mental health care claim against defendants Everett, Keast, and Baca; (3) defendants were not deliberately indifferent to plaintiff's complaints of excessive noise; (4) defendants were not deliberately indifferent to plaintiff's request for mental health treatment; (5) defendants Baca, Clark, and Henderson did not retaliate against plaintiff for filing grievances; (6) plaintiff fails to adequately plead his state law claims; (7) plaintiff failed to allege personal involvement of defendants Aranas and Eaton in regards to his Eighth Amendment claims; and (8) defendants are entitled to qualified immunity.[1] (See ECF No. 67.)


         Summary judgment allows the court to avoid unnecessary trials. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). The court properly grants summary judgment when the record demonstrates that “there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). “[T]he substantive law will identify which facts are material. 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 that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A dispute is “genuine” only where a reasonable jury could find for the nonmoving party. Id. Conclusory statements, speculative opinions, pleading allegations, or other assertions uncorroborated by facts are insufficient to establish a genuine dispute. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996). At this stage, the court's role is to verify that reasonable minds could differ when interpreting the record; the court does not weigh the evidence or determine its truth. Schmidt v. Contra Costa Cnty., 693 F.3d 1122, 1132 (9th Cir. 2012); Nw. Motorcycle Ass'n, 18 F.3d at 1472.

         Summary judgment proceeds in burden-shifting steps. A moving party who does not bear the burden of proof at trial “must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element” to support its case. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Ultimately, the moving party must demonstrate, on the basis of authenticated evidence, that the record forecloses the possibility of a reasonable jury finding in favor of the nonmoving party as to disputed material facts. Celotex, 477 U.S. at 323; Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). The court views all evidence and any inferences arising therefrom in the light most favorable to the nonmoving party. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014).

         Where the moving party meets its burden, the burden shifts to the nonmoving party to “designate specific facts demonstrating the existence of genuine issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citation omitted). “This burden is not a light one, ” and requires the nonmoving party to “show more than the mere existence of a scintilla of evidence. . . . In fact, the non-moving party must come forth with evidence from which a jury could reasonably render a verdict in the non-moving party's favor.” Id. (citations omitted). The nonmoving party may defeat the summary judgment motion only by setting forth specific facts that illustrate a genuine dispute requiring a factfinder's resolution. Liberty Lobby, 477 U.S. at 248; Celotex, 477 U.S. at 324. Although the nonmoving party need not produce authenticated evidence, Fed.R.Civ.P. 56(c), mere assertions, pleading allegations, and “metaphysical doubt as to the material facts” will not defeat a properly-supported and meritorious summary judgment motion, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

         For purposes of opposing summary judgment, the contentions offered by a pro se litigant in motions and pleadings are admissible to the extent that the contents are based on personal knowledge and set forth facts that would be admissible into evidence and the litigant attested under penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).


         A. Civil Rights Claims Under § 1983

         42 U.S.C. § 1983 aims “to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (quoting McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000)). The statute “provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights[, ]” Conn v. Gabbert, 526 U.S. 286, 290 (1999), and therefore “serves as the procedural device for enforcing substantive provisions of the Constitution and federal statutes, ” Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Claims under § 1983 require a plaintiff to allege (1) the violation of a federally-protected right by (2) a person or official acting under the color of state law. Warner, 451 F.3d at 1067. Further, to prevail on a § 1983 claim, the plaintiff must establish each of the elements required to prove an infringement of the underlying constitutional or statutory right.

         B. Failure to Exhaust Administrative Remedies

         1. Exhaustion under the PLRA

         Defendants argue that plaintiff did not properly exhaust available administrative remedies as to his Count I claims. (ECF No. 67 at 6-9.) The PLRA provides that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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). Exhaustion is mandatory. Ross v. Blake, 136 S.Ct. 1850, 1856-57 (2016); Porter v. Nussle, 534 U.S. 516, 524 (2002). The PLRA requires “proper exhaustion” of an inmate's claims. Woodford v. Ngo, 548 U.S. 81, 90 (2006). Proper exhaustion means an inmate must “use all steps the prison holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009) (citing Woodford, 548 U.S. at 90).

         Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2007). The defendants bear the burden of proving that an available administrative remedy was unexhausted by the inmate. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). If the defendants make such a showing, the burden shifts to the inmate to “show there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him by ‘showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile.'” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1172). When a remedy is essentially “unknowable” such that no reasonable inmate can make sense of what it demands, it is considered to be unavailable. See Ross, 136 S.Ct. at 1859-60.

         2. NDOC's Inmate ...

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