United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE
RE: ECF NO. 115
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.
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.
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
thorough review, it is recommended that Defendant'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. (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.
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.)
moves for summary judgment, arguing that Plaintiff failed to
exhaust his administrative remedies, and has no evidence to
support his allegations of excessive force.
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.
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 ...