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. 24).
Plaintiff opposed (ECF No. 29), and defendants replied (ECF
No. 31). For the reasons stated below, the court recommends
that defendants' motion for summary judgment (ECF No. 24)
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Conners ("plaintiff) is an inmate in the custody of the
Nevada Department of Corrections ("NDOC"). The
events that give rise to this action transpired at Ely State
Prison ("ESP") in Ely, Nevada. (ECF No. 22 at 4.)
Pursuant to 42 U.S.C. § 1983, plaintiff brings several
civil rights claims against ESP Mailroom Supervisor Brea
Finch nee Howard ("Howard"), ESP Accounting
Assistant Debbie Reed ("Reed"), ESP Sergeant Curtis
Kemer ("Kerner"), and ESP Warden Renee Baker
("Baker"). (Id.; ECF No. 24.)
first amended complaint ("FAC") sets forth the
following allegations. (ECF No. 22.) In Count I, plaintiff
claims that Howard tampered with plaintiffs legal mail in
violation of his right of access to the courts under the
First and Fourteenth Amendment. (Id. at 5.) The
tampering consisted of Howard's failure to mail
time-sensitive documents relating to plaintiffs federal
habeas case to the United States District Court.
(Id.) Howard also refused to return plaintiffs
habeas documents for a period of three months, and, later,
withheld other legal mail from plaintiff. (Id.) As a
result, the United States District Court denied plaintiffs
motion to proceed in forma pauperis, motion for
appointment of counsel, and motion for certificate of
Count II, plaintiff brings a separate right of access to
courts claim against Reed and Howard. (Id. at 6.) Reed
blocked plaintiffs attempt to pay the five-dollar filing fee
for his habeas corpus application and stated that plaintiffs
account was frozen. Howard, aware that plaintiffs check had
not been issued, failed to inform plaintiff that his account
was frozen and that his payment to the United States District
Court could not be issued. Consequently, the court denied
plaintiffs habeas action, which required plaintiff to engage
in "several months of legal actions to correct."
Count III, plaintiff alleges that Kerner participated in a
conspiracy to deny plaintiff his right of access to the
courts. (Id. at 7.) Kerner denied plaintiffs
grievance that ESP officials tampered with his legal mail
without fully investigating the matter, and conspired with
"the other named defendants to cover up their
Baker is not named in the body of plaintiffs complaint,
plaintiff argues that Baker is liable for the actions of
Howard, Reed, and Kenner under a theory of supervisory
liability. (Id. at 9.) Plaintiff seeks $80, 000 in
compensatory and punitive damages. (Id. at 8.) On
July 18, 2017, defendants filed their motion to for summary
judgment on the grounds that plaintiff failed to properly
exhaust his administrative remedies prior to filing his
complaint. (ECF No. 24.) Plaintiff opposed (ECF No. 29), and
defendants replied. (ECF No. 31.) This report and
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, 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).
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).
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).
Failure to Exhaust ...