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
defendant's motion for summary judgment (ECF No. 15).
Plaintiff opposed (ECF No. 21), and defendant replied (ECF
No. 22). Additionally, plaintiff filed a motion for summary
judgment (ECF No. 20), which plaintiff opposed (ECF no. 23).
For the reasons stated below, the court recommends that
defendant's motion for summary judgment (ECF No. 15), as
well as plaintiffs motion for summary judgment (ECF No. 20)
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Stallworth ("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. 6 at 1; ECF No. 15 at 1.) Pursuant to 42
U.S.C. § 1983, plaintiff brings two civil rights claims
against ESP Correctional Officer Michael "Jason"
Stolk ("Stolk") and seeks monetary damages and
injunctive relief. (ECF No. 5 at 5.)
filed his complaint on September 29, 2016, which sets forth
the following allegations. (ECF No. 6.) On June 3, 2016, two
ESP correctional officers transported plaintiff from ESP to
Northern Nevada Correctional Center ("NNCC") in a
prison transport van. (Id. at 4.) Plaintiff was
fully restrained in handcuffs, waist chains, and ankle
chains. (Id. at 5.) During a rest stop, Stolk opened
the backdoor of the van and grabbed plaintiffs testicles
"in a very hard grip." (Id. at 4.) Stolk
repeatedly squeezed plaintiffs testicles while verbally
abusing plaintiff, causing plaintiff to "cry out in
court screened plaintiffs complaint and permitted him to
proceed on his Count I sexual assault claim and his Count II
excessive force claim. (ECF No. 5 at 5.) Stolk moves for
summary judgment solely on the grounds that plaintiff failed
to properly exhaust his administrative remedies prior to
filing his complaint. (ECF No. 15.) Plaintiff opposed (ECF
No. 21), and Stolk replied. (ECF No. 22.) Additionally,
plaintiff filed a cross-motion for summary judgment (ECF No.
20), which Stolk opposed. (ECF No. 23.) 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 Administrative Remedies
Exhaustion under the PLRA
the Prison Litigation Reform Act ("PLRA"),
"[n]o action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative
remedies as are available are exhausted." 42 U.S.C.
§ 1997e(a). Exhaustion is mandatory. Porter v.
Nussle, 534 U.S. 516, 524 (2002). The requirement's
underlying premise is to "reduce the quantity and
improve the quality of prisoner suits" by affording
prison officials the "time and opportunity to address
complaints internally before allowing the initiation of a
federal case. In some instances, corrective action taken in
response to an inmate's grievance might improve prison
administration and satisfy the inmate, thereby obviating the
need for litigation." Id. at 524-25.
PLRA requires "proper exhaustion" of an
inmate's claims. Woodford v. Ngo, 548 U.S. 81,
90 (2006). Proper exhaustion means an inmate must "use
all steps the prison holds out, enabling the prison to reach
the merits of the issue." Griffin v. Arpaio,
557 F.3d 1117, 1119 (9th Cir. 2009) (citing
Woodford, 548 U.S. at 90). Thus, exhaustion
"demands compliance with an agency's deadlines and
other critical procedural rules because no adjudication
system can function effectively without imposing some orderly
structure on me course of its proceedings."
Woodford, 548 U.S. at 90-91.
Ninth Circuit, a motion for summary judgment will typically
be the appropriate vehicle to determine whether an inmate has
properly exhausted his or her administrative remedies.
Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014).
"If undisputed evidence viewed in the light most
favorable to the prisoner shows a failure to exhaust, a
defendant is entitled to summary judgment under Rule 56. If
material facts are disputed, summary judgment should be
denied, and the district judge rather than a jury should
determine the facts." Id. at 1166. The question
of exhaustion "should be decided, if feasible, before
reaching the merits of a prisoner's claim."
Id. at 1170.
to exhaust is an affirmative defense. Jones v. Bock,
549 U.S. 199, 216 (2007). The defendant bears the burden of
proving that an available administrative remedy was
unexhausted by the inmate. Albino, 747 F.3d at 1172.
If the defendant makes such a showing, the burden shifts to
the inmate to "show there is something in his particular
case that made the existing and generally available
administrative remedies effectively unavailable to him by
'showing that the local remedies were ineffective,
unobtainable, unduly prolonged, inadequate, or obviously
futile.'" Williams v. Paramo, 775 F.3d
1182, 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d
NDOC's Inmate ...