United States District Court, D. Nevada
JOSEPH M. ANDERSON, Plaintiff,
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.
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.
the court is Plaintiff's Motion for Partial Summary
Judgment. (ECF Nos. 183 (motion), 184-1 to 184-18 (exhibits),
189 (exhibit list).) Defendant filed a response. (ECF No.
194.) Plaintiff filed a reply. (ECF No. 196.)
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.)
thorough review, it is recommended that both motions be
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.
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.)
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).
the only remaining claim is the retaliation claim against
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.
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.
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.
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.)
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
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 ...