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Stallworth v. Oxborrow

United States District Court, D. Nevada

June 29, 2018

HADARI STALLWORTH, Plaintiff,
v.
OXBORROW, et. al., Defendants.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE

         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 the Local Rules of Practice, LR 1B 1-4.

         Before 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.

         After a thorough review, it is recommended that Defendants' motion be granted.

         I. BACKGROUND

         Plaintiff 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.)

         On 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 No. 5.)

         The 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.)

         Defendants 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.)

         On 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.

         II. LEGAL STANDARD

         "The 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.

         A party 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), ...

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