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Mitchell v. Nevada Department of Corrections

United States District Court, D. Nevada

July 10, 2018

DONALD E. MITCHELL, JR., Plaintiff,
v.
NEVADA DEPARTMENT OF CORRECTIONS, et al., Defendants.

          ORDER

          RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This case is before the Court on Defendants Timothy Filson (“Filson”) and Miguel Flores-Nava (“Flores-Nava”) (collectively, “Defendants”)' Motion for Summary Judgment (ECF No. 65), and Plaintiff Donald E. Mitchell, Jr. (“Plaintiff”)'s Motion for Appointment of Counsel (ECF No. 67). For the reasons stated below, Defendants' Motion for Summary Judgment is granted in part and denied in part. Plaintiff's Motion for Appointment of counsel is denied.

         II. PROCEDURAL BACKGROUND

         On October 23, 2015, Plaintiff filed this action in state court alleging Fourteenth Amendment and First Amendment violations. (ECF No. 1-2). Defendants removed the case to this Court on January 8, 2016. (ECF No. 1). Magistrate Judge Nancy J. Koppe entered a Screening Order on June 22, 2016. (ECF No. 14). The Court dismissed the Fourteenth Amendment claim without prejudice and with leave to amend, and dismissed Defendants Neven and Foster without prejudice and with leave to amend. The Court also provided Plaintiff thirty days to file an Amended Complaint.

         On July 12, 2016, Plaintiff filed his Amended Complaint, alleging the following two counts: (1) First Amendment retaliation; and (2) violation of the First Amendment right to file grievances. (ECF No. 15). The Court entered a Screening Order on October 5, 2016, dismissing Count Two with prejudice. (ECF No. 21). The parties were also directed to participate in inmate early mediation. An inmate early mediation conference was held on January 13, 2017; a settlement was not reached and the case was returned to the normal litigation track. (ECF No. 30).

         Defendants filed their Answer to the Amended Complaint on March 23, 2017. (ECF No. 34). Plaintiff filed a Response on April 12, 2017. (ECF No. 37). On September 25, 2017, Defendants filed the instant Motion for Summary Judgment. (ECF No. 65). Plaintiff filed his Response on October 11, 2017. (ECF No. 70). Defendants filed their Reply on November 6, 2017. (ECF No. 73). Plaintiff filed a Motion for Appointment of Counsel on September 29, 2017. (ECF No. 67). Defendants filed a Response on October 12, 2017. (ECF No. 69). Plaintiff filed a Reply on November 6, 2017. (ECF No. 75). The Court held a hearing on the motions on July 3, 2018 and took the matter under submission.

         III. UNDISPUTED FACTS

         The Court finds the following facts to be undisputed. On September 25, 2014, Plaintiff and another inmate were housed in Unit 12 Cell C4. That day, Defendant Flores-Nava, a Senior Correctional Officer, conducted a cell search of Plaintiff's cell. With Flores-Nava was another Correctional Officer, Betterly. Plaintiff was removed from the location of the cell search. During the search, Flores-Nava discovered contraband in the form of tattooing equipment.

         Following the discovery of contraband in the cell, Flores-Nava conducted a non-physical, partially clothed body search of Plaintiff and his cellmate. Flores-Nava conducted the body search of Plaintiff and his cellmate in the activity room, an area with no cameras and out of the view of others. After the body search was completed, Flores-Nava issued Plaintiff a Notice of Charges for “Possession of contraband” and “Tattooing or Poss[essing] Tat[tooing] Device.” On September 28, 2014, Plaintiff filed a grievance regarding Flores-Nava's partially unclothed body search. This grievance was properly exhausted through the grievance process.

         On September 29, 2014, Plaintiff also filed a Prison Rape Elimination Act (“PREA”) complaint against Flores-Nava. The PREA investigators interviewed Plaintiff's cellmate on February 26, 2015, and also separately interviewed Plaintiff and Flores-Nava on February 27, 2015. and concluded that “Operational Procedures were followed during the cell search and the unclothed body search” and recommended closure of the case.

         On October 6, 2014, Plaintiff was moved to the same housing unit where Flores-Nava was assigned. Plaintiff filed an Emergency Grievance, in which he claimed that he feared retaliation from Flores-Nava. The Emergency Grievance was denied the same day on the grounds that there was no emergency, and Plaintiff was directed to file an informal grievance or speak with his caseworker.

         On October 18, 2014, a hearing was held regarding the Notice of Charges for tattooing contraband. Plaintiff was found not guilty on both charges.

         On November 14, 2014, Plaintiff filed an informal grievance alleging harassment by Flores-Nava regarding an untucked shirt. In the grievance, Plaintiff claims that after he returned from religious services that day, he was told by the control unit officer to “roll [his] property up” as he would be moving from Unit 10 to Unit 12. Plaintiff wrote that this was retaliation by Flores-Nava, as there were other inmates with untucked shirts and Flores-Nava did not say anything to them about having shirts tucked in before leaving the unit. He stated in the grievance that he was seeking monetary compensation. The same day, Plaintiff filed another informal grievance alleging retaliation by Flores-Nava in the form of being moved to another unit because Flores-Nava “was out to retaliate against [Plaintiff]” for filing grievances and a PREA complaint regarding the body search on September 25, 2014.

         On December 2, 2014, Defendant Filson sent a memorandum to Plaintiff with the subject “Improper Grievance 2006-29-89392 IF Level Grievance.” According to the memorandum, Plaintiff's November 14, 2014 grievance regarding the untucked shirt was being returned to him because Plaintiff did not submit a Form DOC-3096, Administrative Claim Release Agreement. Plaintiff was directed to resubmit the grievance at the informal level with the DOC-3096 attached. Plaintiff signed this memorandum, however, he did not resubmit his grievance with the DOC-3096.

         On January 20, 2015, Defendant Filson sent a memorandum to Plaintiff with the subject “Improper Grievance 2006-29-89391 IF Level Grievance.” According to the memorandum, Plaintiff's November 14, 2014 grievance regarding the unit move was being returned to him because it contained more than one incident or issue. Plaintiff was directed to resubmit an Informal Grievance Form DOC 3091 ...


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