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Tagle v. State

United States District Court, D. Nevada

October 5, 2017

VICTOR TAGLE, Plaintiff,
v.
STATE OF NEVADA, et al., Defendants.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE RE: ECF NO. 115

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.

         This Report and Recommendation is made to the Honorable Miranda M. Du, 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 Corey Rowley's Motion for Summary Judgment. (ECF Nos. 115, 115-1. 115-2.) Plaintiff filed a response. (ECF Nos. 124, 127.) Defendant filed a reply. (ECF No. 148.)

         After a thorough review, it is recommended that Defendant'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. (Compl., ECF No. 7.) The events giving rise to this action took place while Plaintiff was housed at Ely State Prison (ESP). (Id.) The only defendant is Corey Rowley.

         On screening, Plaintiff was allowed to proceed with a single claim of Eighth Amendment excessive force against Rowley based on allegations that on March 3, 2016, Rowley dragged Plaintiff to the point he could not walk, threw Plaintiff into a van door, and hit Plaintiff over the head multiple times. (Screening Order, ECF No. 6.)

         Defendant moves for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies, and has no evidence to support his allegations of excessive force.

         II. LEGAL STANDARD

         A. Summary Judgment

         "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, 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 ...

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