United States District Court, D. Nevada
before the court is defendants captain Suey, lieutenant
Filippo, lieutenant Kelso, and sergeant Aspiazu's motion
for summary judgment. (ECF No. 197). Plaintiff Anthony Baily
filed a response (ECF No. 198), to which defendants replied
(ECF No. 199).
January 18, 2012, plaintiff filed a complaint in the Eighth
Judicial District Court, Las Vegas, Nevada, against the four
officers in both their individual and official capacities
under 42 U.S.C. § 1983. Plaintiff filed the suit on
behalf of himself and three other prisoners: John Scott,
Norman Belcher, and Gabriel Yates. Plaintiff alleges that
defendants' denied plaintiff access to “outdoor
daily fresh air [and] proper ventilation” beginning on
or around February 12, 2012, and lasting an unspecified
period of time. (ECF No. 1).
removed this action on November 13, 2012. Id. On
November 26, 2012, defendants filed their answer to
plaintiff's complaint. (ECF No. 6). In its screening
order the magistrate judge determined that plaintiff had
adequately alleged claims under the Eighth or Fourteenth
Amendment for the alleged deprivation of outdoor exercise and
proper ventilation within the jail facility. See
(ECF No. 14). The court dismissed all other claims. Shortly
thereafter, plaintiff Anthony Bailey filed a motion for class
certification. (ECF No. 25). The court denied Bailey's
motion for class certification. (ECF No. 40). The court noted
that plaintiff Anthony Bailey (1) had no authority to
represent anyone other than himself, (2) was not an adequate
class representative, and (3) had been previously warned by
the Ninth Circuit about his vexatious litigation tactics.
February 5, 2015, the court granted summary judgment in favor
of defendants as to plaintiff's claim alleging a denial
of outdoor exercise. (ECF No. 141). The court held that
plaintiff failed to raise a genuine dispute of material fact
as to whether defendants denied him outdoor exercise for a
period of time longer than that permitted under the
Fourteenth Amendment. Id. The court's order did
not address plaintiff's inadequate ventilation claim.
appeal, the Ninth Circuit affirmed in part and reversed in
part. (ECF No. 178). The Ninth Circuit affirmed the
court's holding as to plaintiff's outdoor exercise
claim. Id. As to defendant's inadequate
ventilation claim, the court held that plaintiff's
declarations that his health suffered because the air filters
in the detention center were unclean raised a genuine dispute
of material fact as to whether the ventilation system harmed
his health. Id.
court declined to affirm summary judgment on the alternative
ground of failure to exhaust available administrative
remedies. Id. The court stated “[o]n remand,
the district court may consider whether summary judgment on
the inadequate ventilation claim for failure to exhaust is
appropriate. If necessary, the district court may receive
additional evidence on this issue.” Id.
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, disputed factual issues should
be construed 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