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Anderson v. State

United States District Court, D. Nevada

January 8, 2019

JOSEPH M. ANDERSON, Plaintiff,
v.
THE STATE OF NEVADA, et al., Defendants.

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NOS. 183, 193

          WILLIAM G. COBB UNITED STATES MAGISTRATE JUDGE.

         This Report and Recommendation is made to the Honorable Robert C. Jones, Senior 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 Plaintiff's Motion for Partial Summary Judgment. (ECF Nos. 183 (motion), 184-1 to 184-18 (exhibits), 189 (exhibit list)[1].) Defendant filed a response. (ECF No. 194.) Plaintiff filed a reply. (ECF No. 196.)

         Also before the court is Defendant's Renewed Motion for Summary Judgment. (ECF No. 193.) Plaintiff filed a response. (ECF No. 199.) Defendant filed a reply. (ECF No. 204.)

         After a thorough review, it is recommended that both motions be denied.

         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. (Am. Compl., ECF No. 7.) The events giving rise to this action took place while Plaintiff was housed at Lovelock Correctional Center (LCC). (Id.) The only remaining defendant is Jethro Parks.

         Plaintiff originally sued for violations of the Free Exercise Clause of the First Amendment, the Religious Land Use and Institutionalized Persons Act (RLUIPA), the Equal Protection Clause of the Fourteenth Amendment, retaliation in violation of the First Amendment, and civil rights conspiracy. (ECF No. 1-2.) The court screened the complaint, allowing certain claims to proceed and dismissing others with leave to amend. (ECF No. 5.) Upon amendment, the court allowed Plaintiff to proceed with the RLUIPA, First Amendment retaliation, equal protection and civil rights conspiracy claims, but dismissed a due process claim with prejudice. (ECF Nos. 7, 8.)

         The defendants filed a motion for summary judgment arguing Plaintiff failed to exhaust administrative remedies and statute of limitations defenses as to certain claims, and that the retaliation claim against Parks failed on the merits. (ECF No. 27.) The undersigned issued a report and recommendation that the motion for summary judgment be granted, except as to the retaliation claim against Parks because of disputed factual issues. (ECF No. 66.) Both parties objected (ECF Nos. 69, 70), and District Judge Jones overruled the objections and accepted and adopted the report and recommendation in full. (ECF No. 76.) Plaintiff moved for reconsideration (ECF Nos. 80), and District Judge Jones denied the motion (ECF No. 139).

         Therefore, the only remaining claim is the retaliation claim against defendant Parks.

         Plaintiff alleges that Parks subjected him to oppressive cell searches because of his religion (he identifies as a Wiccan), which were intended to chill his right to practice his religion without advancing any legitimate penological goal. (ECF No. 7 at 9.) He claims that Parks told him the oppressive cell searches would stop if he changed his religion. (Id.)

         When Parks previously moved for summary judgment, he argued that he did not search Plaintiff's cell or confiscate property due to his First Amendment conduct, but instead he followed orders to conduct random cell searches for safety and security reasons. He asserted that during the search he confiscated a bottle of an unknown liquid which Plaintiff claimed was baby oil. Baby oil was permitted religious property, but if property is altered in any way it is considered contraband subject to confiscation. Parks maintained that the baby oil was in a bottle with a label held on with tape, which is not the way Plaintiff would have purchased it, and made it impossible for the prison staff to verify its contents. For this reason, he confiscated it.

         Plaintiff, on the other hand, did not dispute Parks may have been ordered to search his cell, but maintained that Parks confiscated the baby oil because Plaintiff was a practicing Wiccan. Plaintiff claimed: that Parks only searched Plaintiff's property, and not his cellmate's; Parks took only religious property items; that he told Parks the property was authorized and he planned to use it in a Wiccan ceremony, and Parks said, "You are not authorized to have group items in your cell-you have been told this."; Plaintiff asked him why officers kept taking his religious property and frustrating his religious practices, and Parks said, "Perhaps you should change your religion and your problems will go away." In addition, Plaintiff disputed the bottle was altered.

         The court found there was a genuine dispute as to various material facts concerning whether Parks confiscated items from Plaintiff's cell because of Plaintiff's First Amendment activity, whether this chilled Plaintiff's exercise of his First Amendment rights, and whether the action reasonably advanced a legitimate correctional goal. Following this, the court opened discovery and set a new dispositive motions deadline. (ECF No. 84.)

         Plaintiff filed a motion for partial summary judgment arguing that there is evidence that Parks followed orders to conduct a targeted search of only Plaintiff's property, to confiscate his religious property, and that this was part of a custom of subjecting Plaintiff to these cell searches in an attempt to modify his spiritual behavior. (ECF No. 183.) While he titles his motion as one for partial summary judgment, he moves for summary judgment as to the only remaining claim.

         Parks' renewed motion for summary judgment argues that he is entitled to qualified immunity, and incorporates by reference the facts and exhibits presented on this claim in ...


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