United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE
RE: ECF NO. 38
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 Plaintiff's “Motion for Summary
Judgment based on: criminal conduct of the counsel's and
defendants alike.” (ECF No. 38.) Plaintiff then filed a
“response” to his own motion. (ECF No. 42.)
Defendants moved to strike the response. (ECF No. 60.) The
court has addressed the motion to strike in a separate order,
which construes Plaintiff's “response” as a
supplement to his motion, and denies the motion to strike.
Defendants also filed a response to the motion for summary
judgment. (ECF No. 50.)
thorough review, it is recommended that Plaintiff'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. (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 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.)
motion, which is difficult to decipher, Plaintiff appears to
state that in a reply filed in support of a motion to strike,
Deputy Attorney General Hardcastle and Beecroft referred to
Plaintiff as “misguided”, which Plaintiff refers
to as an insult. He also appears to claim that Hardcastle
referred to Plaintiff as “ignorant” and a
“minority.” He then states that Beecroft, Leslie
and Hardcastle added time to his sentence. In his response to
his own motion, Plaintiff clarifies that he does not want his
case dismissed based on his summary judgment motion, but
wants default entered in his favor.
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 ...