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McNair v. Baca

United States District Court, D. Nevada

October 10, 2017

ISIDRO BACA, et al, Defendants.


         This Report and Recommendation is made to the Honorable Robert C. Jones, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Before the court is defendants' motion for summary judgment (ECF No. 35). Plaintiff opposed (ECF No. 38), and defendants replied (ECF No. 40). For the reasons stated below, the court recommends that defendants' motion for summary judgment (ECF No. 35) be granted.


         Clarence McNair ("plaintiff) is an inmate in the custody of the Nevada Department of Corrections ("NDOC"), and is currently housed at Northern Nevada Correctional Center ("NNCC") in Carson City, Nevada. Pursuant to 42 U.S.C. § 1983, plaintiff brings two civil rights claims against Correctional Officer Donald Thorpe and Warden Isidro Baca (collectively, "defendants").

         A. Case History

         Plaintiff filed his complaint on May 2, 2016. (ECF No. 1-1). In Count I, Plaintiff claims that Thorpe's deliberate indifference to plaintiffs medical needs violated the Eighth Amendment. (Id. at 4.) To support this claim, plaintiff alleges the following: Plaintiff is medically confined to a wheelchair and has a medical condition that requires him to use the bathroom facilities more than normal. (Id. at 4.) On October 6, 2015, while engaging in outdoor therapy, prison officials locked plaintiff out of his housing unit and deprived him of water and bathroom facilities. (Id.) Sometime afterwards, plaintiff informed Thorpe that he needed to use the bathroom. (Id.) Thorpe laughed and "said that plaintiff would go when Thorpe said he could go, and left the door closed." (Id.) Consequently, plaintiff tried to refrain from "soiling himself but it caused him "great pain physically and embarrassment." (Id.) Eventually, plaintiff s "bowels released." (Id.) In response, Thorpe made plaintiff "wait in his own waste matter while he ridiculed and bullyed [sic] plaintiff." (Id.) Thorpe also refused to call medical help or to provide plaintiff with any means to clean himself up. (Id.) Additionally, plaintiff alleges that this was not an isolated incident; when the disabled prisoners of Unit Two go outside for therapy, the unit officers frequently lock the doors to the six "ADA-accessible toilets." (Id.) (referencing the Americans with Disability Act ("ADA")). Even when these ADA-accessible toilets are made available, it is apparent that they are not compliant with the ADA - a concern also voiced by two of the prison doctors. (Id.)

         In Count II, Plaintiff alleges a separate Eighth Amendment violation based on the prison's failure to provide plaintiff with adequate access to water. To support this claim, plaintiff alleges the following: Plaintiff and other disabled inmates were deprived of access to water during outdoor therapy and exercise because prison officials locked their housing units. (Id. at 5.) The only water source outside of the housing units was located in a dirt field surrounded by a ditch, soft sand, and gravel stones, which is inaccessible to wheelchair-bound inmates. (Id.) Thus, plaintiff claims that when Thorpe refused to unlock the unit doors as described in Count I, he denied plaintiff both a bathroom and access to water "suitable for an inmate confined to a wheelchair." (Id.) Plaintiff also alleges that the NNCC had a written policy that the unit doors were to remain open for five minutes every hour, but that prison guards often violated this policy. (Id. at 5-6). Even though Baca told Plaintiff that there were plans in place to provide better access for disabled inmates, no changes have been made. (Id.)

         On January 4, 2017, the District Court entered a screening order pursuant to 28 U.S.C. § 1915, and allowed the complaint to proceed. (ECF No. 3.) The court construed both Count 1 and Count II as a single claim that the prison's failure to provide plaintiff with bathroom and water access violated the Eighth Amendment's standard for conditions of confinement. (Id. at 5.) Defendants move for summary judgment on the grounds that plaintiff failed to properly exhaust his administrative remedies prior to filing his complaint.[1] (ECF No. 35). In support, defendants have attached the full grievance history pertaining to plaintiffs claim.

         B. Grievance History

         On October 12, 2015, plaintiff filed his first, informal grievance against defendants, using NDOC's Informal Grievance form. (ECF No. 35-4 at 3; see also ECF No. 38 at 7 (plaintiffs copies of grievance forms)). The grievance alleged that on October 6, 2015, plaintiff tried to enter his assigned housing unit "for the sole and urgent purpose of useing [sic] the bathroom, " as it was the only bathroom the prison made available at that time. (ECF No. 38 at 7.) However, plaintiff found that Thorpe had locked the unit, effectively preventing plaintiff from using the bathroom. (Id.) As a result, plaintiff urinated himself. (Id. at 8.) Thorpe eventually opened the door, and plaintiff confronted him. (Id. at 7-8.) During this confrontation, plaintiff told Thorpe that he has a medical condition that requires him to use the bathroom frequently, and that locking inmates out of their assigned housing bathrooms is a violation of NDOC policy. Out of embarrassment, plaintiff did not tell Thorpe that he had urinated himself. (Id. at 8.) In response, Thorpe explained that NNCC's "door call policy" required him to keep the assigned housing locked without exception. (Id.) Plaintiff claims that Thorpe's action constituted a violation of the Eighth and Fourteenth Amendment. (Id.) Plaintiffs informal grievance sought to have Thorpe forbidden from working in plaintiffs unit and to be psychologically evaluated. (Id. at 8-9.)

         On November 4, 2015, NDOC notified plaintiff that his informal grievance had been forwarded to the Office of the Inspector General for further review, pursuant to NDOC Administrative Regulation ("AR") 740.05-11. (ECF No. 35-4 at 2.) Plaintiff then filed a first-level grievance on November 9, 2015, and requested a formal review of his original grievance because plaintiff believed that the Inspector General "will do nothing one way or another as if a grievance was never filed ...." (ECF No. 35-4 at 5.) NDOC denied plaintiffs first-level grievance on February 11, 2016, and responded that the informal grievance was properly forwarded to the Inspector General. Furthermore, NDOC informed plaintiff that pursuant to AR 740, "[t]imeframes are suspended until a disposition is received from the Inspector General's Office." (Id. at 4.) On March 4, 2016, plaintiff filed his second-level grievance and requested formal review of the denial of his first-level grievance because he had not heard "a word in regards to this matter" from the Office of the Inspector General. (Id. at 7.) On April 18, NDOC returned plaintiffs second-level grievance with a memorandum explaining that he had failed to "attach all necessary documents" -specifically, his "response pages." (Id. at 6.) The memorandum directed plaintiff to resubmit his second level grievance with the necessary documents attached, and noted that the failure to do so would constitute abandonment of his grievance. (Id.) Plaintiff signed both the returned second-level grievance and accompanying memorandum, (Id. at 6-7.)

         Plaintiff did not resubmit his second-level grievance; instead, on May 2, 2016, plaintiff filed his civil rights complaint with this court. (ECF No. 1-1 at 1.) Defendants move for summary judgment on the grounds that plaintiff failed to properly exhaust his administrative remedies prior to filing his complaint. This Report and Recommendation follows.


         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 die 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., 210F.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 ...

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