United States District Court, D. Nevada
REPORT & RECOMMENDATION OF U.S. MAGISTRATE
WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE
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 the Local Rules of Practice, LR 1B 1-4.
the court is Defendants' Motion for Summary Judgment.
(ECF Nos. 17, 17-1 to 17-6.) Despite being given an extension
of time to file it (see ECF No. 23.), Plaintiff has
not filed a response to the motion.
thorough review, it is recommended that Defendants'
motion be granted.
is an inmate in the custody of the Nevada Department of
Corrections (NDOC), proceeding pro se with this action
pursuant to 42 U.S.C. § 1983. (Compl., ECF No. 6.) The
events giving rise to this action took place while Plaintiff
was housed at Ely State Prison (ESP). (Id.)
Defendants are John Oxborrow, Herman Matoud and Dorsey
Armstrong. (Id.; Screening Order, ECF No. 5.)
screening Plaintiff was allowed to proceed with a claim for
denial of access to the grievance process based on
allegations that all three officers refused to give Plaintiff
both emergency and informal grievance forms when asked. (ECF
Attorney General's Office accepted service on behalf of
Matoud and Oxborrow, but not on behalf of Armstrong, who was
a former employee of NDOC. (ECF No. 12.) Armstrong's
address was filed under seal, and a summons was issued for
Armstrong on November 15, 2017. (ECF Nos. 13, 16.) The
summons was returned unexecuted (ECF No. 21); however, the
motion for summary judgment was filed on behalf of Armstrong,
Matoud and Oxborrow. (See ECF No. 17 at 1.)
filed their motion for summary judgment on December 28, 2017,
arguing that Plaintiff failed to exhaust his administrative
remedies. (ECF No. 17.) On January 24, 2018, Plaintiff filed
a motion for enlargement of time of sixty days to respond to
the motion. (ECF No. 19.) The motion was granted, and
Plaintiff was given until March 26, 2018 to file his
response. (ECF No. 20.)
March 26, 2018, Plaintiff filed a motion asking the court to
allow him to conduct discovery (including discovery to
demonstrate he did exhaust his administrative remedies). (ECF
No. 22.) The court interpreted this as a request under
Federal Rule of Civil Procedure 56(d), and granted the motion
insofar as the court allowed Plaintiff to pursue discovery
solely on the exhaustion issues presented by the motion for
summary judgment. (ECF No. 23.) Plaintiff was given sixty
days to complete this targeted discovery, and was ordered to
file his response to Defendants' motion for summary
judgment by June 26, 2018. (Id.) As of the date of
this Report and Recommendation, Plaintiff has not filed a
response to the motion for summary judgment.
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court." Northwest Motorcycle Ass'n v. U.S.
Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994)
(citation omitted). In considering a motion for summary
judgment, all reasonable inferences are drawn in favor of the
non-moving party. In re Slatkin, 525 F.3d 805, 810
(9th Cir. 2008) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986)). "The court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). On the other hand, where reasonable minds could differ
on the material facts at issue, summary judgment is not
appropriate. See Anderson, 477 U.S. at 250.
asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),