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Conners v. Howard

United States District Court, D. Nevada

January 31, 2018

B. HOWARD, et al, Defendants.


         This 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) be granted.


         Darrell 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.)

         Plaintiffs 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 appealability. (Id.)

         In Count II, plaintiff brings a separate right of access to courts claim against Reed and Howard.[1] (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." (Id.)

         In 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 actions...." (Id.)

         Although 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 recommendation follows.


         Summary 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.

         Summary 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).

         Where 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).

         For 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).


         A. Failure to Exhaust ...

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