United States District Court, D. Nevada
C. JONES, UNITED STATES DISTRICT JUDGE.
prisoner civil rights complaint under 42 U.S.C. § 1983
arises out of an alleged altercation over whether a prisoner
could remove his meal from the prison cafeteria. Pending
before the Court is the Magistrate Judge's Report and
Recommendation ("R&R") on motions to dismiss
and for summary judgment. For thse reasons given herein, the
Court respectfully rejects the R&R in part and grants the
motion for summary judgment.
FACTS AND PROCEDURAL HISTORY
Marvin Nordgaarden is a prisoner in the custody of the Nevada
Department of Corrections ("NDOC") housed at
Northern Nevada Correctional Center ("NNCC") in
Carson City. In his Complaint, Plaintiff alleged a free
exercise violation based on a policy preventing inmates from
bringing their food outside of the cafeteria on Passover.
Plaintiff alleged that his Jewish faith requires him to eat
his meal outside the presence of chametz (leavened bread). He
also alleged an equal protection violation based on the
policy and an Eighth Amendment violation based on
insufficient nutritional value of kosher meals provided. Upon
screening, the Court dismissed the claims with leave to
amend. Plaintiff filed the First Amended Complaint
("FAC"). The Court dismissed the amended claims
without leave to amend but permitted a new claim for
retaliation in violation of the First Amendment to proceed
against Corrections Officer Vest. In that claim, Plaintiff
alleges that on April 11, 2015, he argued with Vest when
Plaintiff tried to leave the cafeteria with his meal during
Passover. Vest told him it was not permitted on that day.
Plaintiff disagreed and tried to leave, anyway. Vest took
Plaintiffs meal, shoved him against a wall, handcuffed him,
put him in a holding cell, and threatened him with
administrative segregation should he file a complaint. Vest
has filed motions to dismiss and for summary judgment.
must grant summary judgment when "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). Material facts are those which may affect
the outcome of the case. See Anderson v. Liberty Lobby,
Inc., 411 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. See Id. A principal purpose of summary
judgment is "to isolate and dispose of factually
unsupported claims." Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. "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." C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks 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 that 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.,
Ml U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied, and the court need not consider the
nonmoving party's evidence. See Adickes v. S.H. Kress
& Co., 398 U.S. 144, 160 (1970). If the moving party
meets its initial burden, the burden then shifts to the
nonmoving party to establish a genuine issue of material
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). To establish the
existence of a factual dispute, the nonmoving party need not
establish a material issue of 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, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989). Instead, the nonmoving party must go beyond the
assertions and allegations of the pleadings and set forth
specific facts by producing competent evidence that shows a
genuine issue for trial. See Fed. R. Civ. P. 56(e);
Celotex Corp., 477 U.S. at 324.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial. See
Anderson, 477 U.S. at 249. The evidence of the nonmoving
party is "to be believed, and all justifiable inferences
are to be drawn in his favor." Id. at 255. But
if the evidence of the nonmoving party is merely colorable or
is not significantly probative, summary judgment may be
granted. See Id. at 249-50. Notably, facts are only
viewed in the light most favorable to the nonmoving party
where there is a genuine dispute about those facts. Scott
v. Harris, 550 U.S. 372, 380 (2007). That is, even where
the underlying claim contains a reasonableness test, where a
party's evidence is so clearly contradicted by the record
as a whole that no reasonable jury could believe it, "a
court should not adopt that version of the facts for purposes
of ruling on a motion for summary judgment."
asks for summary judgment both on the merits and for failure
to exhaust administrative remedies. The Court grants the
motion for failure to exhaust. The Court adopts the
Magistrate Judge's recitation of the law regarding
exhaustion of administrative remedies and the grievance
process as provided by NDOC Administrative Regulation
("AR") 740 and will not reproduce it here. The
parties do not appear to dispute that Plaintiff opened two
grievance files arguably related to the alleged retaliation,
Nos. 20062998812 and 20063011050. The Court respectfully
disagrees with the R&R that Plaintiff has shown a genuine
issue of material fact as to exhaustion of the '812
grievance, and the Court also finds that Plaintiff has not
shown a genuine issue of material fact as to exhaustion of
the '050 grievance.
the '812 grievance, the potentially disputed issue is
whether Plaintiff submitted a first-level
grievance. Vest has adduced the grievance log, which
does not indicate any first-level grievance but only an
informal grievance and four second-level grievances that were
all returned as improper because no first-level grievance had
been filed. (See ECF No. 39-1). He has also adduced
the underlying improper grievance forms indicating that
Plaintiff had filed multiple second-level grievances without
having filed a first-level grievance. (See ECF No.
21-3, at 2-6). Vest's evidence would entitle him to a
directed verdict on the non-exhaustion issue were it to go
unrebutted at trial. Plaintiff has not created a genuine
issue of material fact with his evidence. Plaintiffs only
evidence as to whether he filed a first-level grievance is a
copy of a first-level grievance that only has his own
markings on it, not any indication of receipt or response.
(See ECF No. 24, at 39). In other words, the only
copy adduced of any first-level grievance is indisputably
unprocessed. Plaintiff provides no testimony that he timely
submitted his first-level grievance, which is unlikely given
the detailed attention NDOC gave to his other filings.
Plaintiff has simply adduced no evidence that he actually
submitted a first-level grievance. He has just adduced a copy
of an unprocessed first-level grievance, which only tends to
show that he filled it out (at some point in time), not that
he timely submitted it. There is no attestation or other
evidence in the record indicating that, when, or to whom any
first-level grievance was submitted.
the '050 grievance, the informal grievances Plaintiff
himself attaches to his opposition do not indicate any
complaint for the alleged April 11, 2015 retaliation, but
only a complaint against the underlying policy, claims the
Court dismissed with prejudice upon screening the FAC.
(See Informal Grievance, Feb. 12, 2016, ECF No. 24,
at 22-24 (including duplicate of first page); Informal
Grievance, Oct. 23, 2016, ECF No. 24, at 26-29 (including
duplicate of first page)). The October 23, 2016 Informal
Grievance states "It can also be considered an act of
retaliation based on [the '812] grievance." But that
claim of "retaliation" has nothing to do with
Vest's alleged treatment of Plaintiff on April 11, 2015.
Rather it is an argument that the continued general policy of
not permitting Plaintiff to eat his meals outside the
cafeteria (not just on Passover but on all days) was
retaliation for his having filed the '812 grievance.
Plaintiff has filed no such retaliation claim in this Court.
His retaliation claim in this Court is based on the alleged
April 11, 2015 incident. (See First Am. Compl. 6,
ECF No. 7). And if the '050 Informal Grievance filed on
October 23, 2016 were read to complain of the April 11, 2015
incident, it would be untimely under AR 740, which requires
grievances to be filed no later than six months after the
incident. (See AR 740 § 740.05(4), ECF No.
39-3, at 6).
summary, Vest is entitled to summary judgment based on
non-exhaustion of administrative remedies. Because the Court
resolves the case on the ...