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Wilk v. Neven

United States District Court, D. Nevada

November 14, 2017

ROBERT WILK, Plaintiffs,
v.
DWIGHT NEVEN, et al., Defendants.

          ORDER

         Presently before the court is pro se plaintiff Robert Wilk's “rule 8 motion for relief.” (ECF No. 44).[1] Defendants Dwight Neven, Cary Leavitt, and Jennifer Nash responded. (ECF No. 48). Wilk replied. (ECF No. 51).

         Also before the court is Wilk's motion for summary judgment. (ECF No. 46). Defendants responded. (ECF No. 49). Wilk replied. (ECF No. 52).

         Also before the court is Wilk's renewed motion for summary judgment. (ECF No. 57). Defendants responded. (ECF No. 74).[2] Wilk replied. (ECF No. 80).

         Also before the court is defendants' motion for summary judgment. (ECF No. 77). Wilk responded. (ECF No. 81). Defendants replied. (ECF No. 82).

         I. Facts

         This 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).

         Wilk 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).

         Casework 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 7/8. Id.

         On the 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 6).

         Wilk 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).

         On 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).

         Wilk 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).

         On July 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 No. 23).

         Wilk 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).

         II. Legal Standard

         The 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).

         For 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.

         In 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).

         By 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).

         If the 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. 1987).

         In 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.

         At 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 nonmoving ...


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