United States District Court, D. Nevada
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE
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 LR IB 1-4. Before the court is
defendants' motion for summary judgment (ECF No. 35),
plaintiffs cross-motion for summary judgment and opposition
to defendants' motion for summary judgment (ECF No. 37),
and defendants' reply (ECF No. 40). Having thoroughly
reviewed the record and papers, the court hereby recommends
that the defendants' motion for summary judgment be
denied and that the plaintiffs cross-motion for summary
judgment be denied.
Davis ("plaintiff) is an inmate in the custody of the
Nevada Department of Corrections ("NDOC"). Pursuant
to 42 U.S.C. § 1983 and proceeding pro se,
plaintiff brings a civil rights action for events that
occurred while he was in custody at Warm Springs Correctional
to the complaint, the events giving rise to plaintiffs claims
are as follows. Plaintiff has a "severe pre-existing
medical condition" - a shoulder injury. (ECF No. 13 at
4.) On June 14, 2014, Correctional Officer William Holbert
("Holbert") and Correctional Officer Tim Robinson
("Robinson") ordered plaintiff and his cell mate
out of their cell to conduct a cell search. (Id. at
5.) During the cell search, Plaintiff "inveighed
[against] his personal property being thrown to the
floor." (Id.) In response, Robinson ordered
plaintiff to face the wall to be handcuffed. (Id.)
Plaintiff "vehemently begged and pleaded" with
Robinson to place the handcuffs in front of plaintiffs body
to accommodate plaintiffs shoulder injury. (Id.)
Plaintiff claims that he alerted Robinson to a medical order
hanging on his cell wall that required plaintiff to be cuffed
only in the front of his body. (Id.) Robinson
disregarded the medical order and handcuffed plaintiff behind
his back, which caused plaintiff "excruciating,
torturous pain." (Id.) Additionally, plaintiff
alleges that Robinson and Holbert pushed and pulled plaintiff
when they escorted him from his cell to the administration
building, which further aggravated plaintiff's shoulder.
(Id. at 6.) Upon arriving at the administration
offices, plaintiff told Sergeant Hardy ("Hardy")
that he was in severe pain and that he had medical orders for
the handcuffs to be placed in front of his body.
(Id. at 7.) However, Hardy placed plaintiff in a
small visiting cubicle where he had to wait for over an hour
with his handcuffs behind his back. (Id.)
December 12, 2014, the District Court screened plaintiffs
First Amended Complaint and permitted one count of Eighth
Amendment excessive force to proceed against Robinson,
Holbert, and Hardy. (ECF No. 15 at 5.) On December 13, 2016,
the parties participated in a mediation session as part of
the District of Nevada's early inmate mediation program,
but did not settle. (ECF No. 19.) On June 28, 2017,
defendants moved for summary judgment (ECF No. 35) and
plaintiff filed a cross-motion for summary judgment (ECF No.
37). This recommended disposition follows.
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 the 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.
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., 210 F.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, 477U.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).
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, 477U.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).
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
penalty of perjury that they were true and correct. Jones
v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004).
Civil Rights Claims Under § 1983
U.S.C. § 1983 aims "to deter state actors from
using the badge of their authority to deprive individuals of
their federally guaranteed rights." Anderson v.
Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (quoting
McDade v. West, 223 F.3d 1135, 1139 (9th Cir.
2000)). The statute "provides a federal cause of action
against any person who, acting under color of state law,
deprives another of his federal rights[, ]" Conn v.
Gabbert, 526 U.S. 286, 290 (1999), and therefore
"serves as the procedural device for enforcing
substantive provisions of the Constitution and j federal
statutes, " Crumpton v. Gates, 947 F.2d 1418,
1420 (9th Cir. 1991). Claims under § 1983 require a
plaintiff to allege (1) the violation of a
federally-protected right by (2) a person or official acting
under the color of state law. Warner, 451 F.3d at
1067. Further, to prevail on a § 1983 claim, the
plaintiff must establish each of the elements required to
prove an infringement of the underlying constitutional or
Eighth Amendment ...