United States District Court, D. Nevada
before the court is pro se plaintiff Robert
Wilk's “rule 8 motion for relief.” (ECF No.
Defendants Dwight Neven, Cary Leavitt, and Jennifer Nash
responded. (ECF No. 48). Wilk replied. (ECF No. 51).
before the court is Wilk's motion for summary judgment.
(ECF No. 46). Defendants responded. (ECF No. 49). Wilk
replied. (ECF No. 52).
before the court is Wilk's renewed motion for summary
judgment. (ECF No. 57). Defendants responded. (ECF No.
Wilk replied. (ECF No. 80).
before the court is defendants' motion for summary
judgment. (ECF No. 77). Wilk responded. (ECF No. 81).
Defendants replied. (ECF No. 82).
action involves an inmate's 42 U.S.C. § 1983 claim.
(ECF No. 18). Wilk was, at all times during the underlying
incident, incarcerated in High Desert State Prison (HDSP).
(ECF No. 18). Defendant Neven was the warden of HDSP. (ECF
No. 18 at 2). Nash is an associate warden at HDSP. (ECF No.
33 at 2). Leavitt is a “correctional case work
specialist 3” at HDSP, although Wilk identified him as
“supervisor of caseworkers.” (ECF Nos. 18 at 2;
33 at 2). Finally, Wilk names “John Doe II” in
place of the floor officer for unit 7/8, and “John Doe
III” in place of the “top ‘bubble'
control officer” for unit 7A/B. (ECF No. 18 at 2-3).
alleges that defendants breached their duty under the Eighth
Amendment when they failed to protect him from Ysaquirle
Nunley, who Wilk identified as “inmate #1050390.”
(ECF No. 18). In particular, Wilk alleges that Nunley
threatened to physically harm Wilk on October 20, 2013. (ECF
No. 18 at 4). Wilk reported the threat to his unit (7 A/B)
floor officer, John Doe II, and participated in a “full
classification committee” (FCC) meeting on October 24,
2013. (ECF No. 18 at 4).
specialist Leavitt conducted the FCC meeting. (ECF No. 18 at
4). Wilk alleges that warden Neven was in attendance. (ECF
No. 18 at 4). Wilk filled out a “central monitoring
system” form to document that he sought protection from
harm at the hands of another inmate. (ECF No. 18 at 4). The
form listed inmate #1050390, Nunley, as being added to
Wilk's “enemy list.” Id. Wilk was
moved into unit 8. Id. He claims that, at the time,
he was led to believe that Nunley would be moved from unit
morning of February 11, 2014, Wilk was in the unit 7/8 yard
waiting for an escort to the education building. (ECF No. 18
at 5). Nunley allegedly exited his cell without authorization
and attacked Wilk with stones, gravel, and his fists. (ECF
No. 18 at 5). As a result of the attack, Wilk suffered
extreme physical, emotional, and mental pain. (ECF No. 18 at
alleges that John Does II and III are responsible for
Nunley's unauthorized exit from his cell. (ECF No. 18).
Nash was one of the supervisors who responded to the
incident. (ECF No. 18 at 6).
January 1, 2015, Wilk asked his caseworker on what date
Nunley was added to his enemy list. (ECF No. 18 at 6). Wilk
learned that the enemy list was updated the day of the
attack- nearly four months after Wilk submitted the central
monitoring system form. (ECF No. 18 at 6).
alleges that defendants ignored his earlier requests for
protection and misrepresented that Nunley had been moved from
his unit after Wilk's FCC hearing in October 2013. (ECF
No. 18 at 5-6). Wilk alleges that the defendants failed to
protect him in violation of his Eighth Amendment rights. (ECF
No. 18 at 4-6).
28, 2016, the court entered a screening order on Wilk's
amended complaint (ECF No. 18), allowing Wilk to proceed on
his Eighth Amendment failure to protect claims against
defendants Neven, Nash, Leavitt, and John Does II-III. (ECF
has filed three motions for summary judgment. (ECF Nos. 44,
46, 57). Defendants have filed a motion for summary judgment
based on qualified immunity. (ECF No. 77).
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, this court will disputed
factual issues in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor; it is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by producing competent evidence that
shows a genuine issue for trial. See Celotex, 477
U.S. at 324.
summary judgment, a court's function is not to weigh the
evidence and determine the truth, but to determine whether
there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The evidence of the nonmovant is “to be believed, and
all justifiable inferences are to be drawn in his
favor.” Id. at 255. But if the evidence of the