United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 26
William G. Cobb United States Magistrate Judge.
Report and Recommendation is made to the Honorable Robert C.
Jones, 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
the court is defendant Susan Baros' Motion for Summary
Judgment. (ECF Nos. 26, 26-1 to 26-6, 28-1.) Plaintiff filed
a response. (ECF No. 31.) Baros filed a reply. (ECF No. 32.)
thorough review, it is recommended that Baros' motion 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. (Compl., ECF No. 6.) The
events giving rise to this action took place while Plaintiff
was housed at Lovelock Correctional Center (LCC).
(Id.) The court screened Plaintiff's complaint
and determined he could proceed on an Eighth Amendment
failure to protect claim against Baros. (ECF No. 5.)
alleges that beginning in December of 2015, he repeatedly
notified Baros that a 6' 5" tall, 280 lbs. inmate
known as "Pee Wee" was sexually stalking him by
staring in his window, following him, showering at the same
time, and even rubbing his crotch against Plaintiff's
back while he sat at tier tables. Plaintiff avers that Baros
refused to move Plaintiff or Pee Wee to separate units, and
called Plaintiff a "trouble maker" and "cry
baby." (ECF No. 6 at 11.) In April of 2016,
Plaintiff's pain medication prescription was increased,
which caused him to sleep heavily during the day when cell
doors were left open. (Id.) On May 9, 2016,
Plaintiff's cellmate left without locking the door while
Plaintiff slept. (Id.) Plaintiff was woken up at
approximately 12:15 p.m., by Pee Wee, who was already
sodomizing Plaintiff. (Id. at 12.) He attempted to
escape, but the much larger Pee Wee threw Plaintiff into the
steel bunk and concreate wall, injuring Plaintiff and
knocking him unconscious. (Id.) At approximately
2:30 p.m., Plaintiff asserts that he regained consciousness
and hobbled out of his cell to report the incident. He was
subsequently taken to the operations center, and was given an
orange jumpsuit in exchange for his clothes. (Id. at
12.) A written statement was taken, and he was taken to Reno
for questioning by a Nevada Attorney General agent and was
examined by a sexual assault nurse. (Id.)
other claims were dismissed with leave to amend; however,
Plaintiff did not file an amended complaint. (See
ECF Nos. 5, 8.) Therefore, the action is proceeding only as
to the failure to protect claim against Baros.
moves for summary judgment, arguing that there is no evidence
Plaintiff notified her that Pee Wee posed a serious threat to
his safety so she was not deliberately indifferent. In
addition, she argues that she is entitled to qualified
immunity because she did not violate a clearly established
constitutional right since she did not know of any risk to
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) (citation omitted). “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. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986).
evaluating whether or not summary judgment is appropriate,
three steps are necessary: (1) determining whether a fact is
material; (2) determining whether there is a genuine dispute
as to a material fact; and (3) considering the evidence in
light of the appropriate standard of proof. See
Anderson, 477 U.S. at 248-50. As to materiality, 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 which are irrelevant or
unnecessary will not be considered. Id. at 248.
deciding a motion for summary judgment, the court applies a
burden-shifting analysis. “When the party moving for
summary judgment would bear the burden of proof at trial,
‘it must come forward with evidence which would entitle
it to a directed verdict if the evidence went uncontroverted
at trial.'… In such a case, the moving party has
the initial burden of establishing the absence of a genuine
[dispute] of fact on each issue material to its case.”
C.A.R. Transp. Brokerage Co. v. Darden Rest., Inc.,
213 F.3d 474, 480 (9th Cir. 2000) (internal citations
omitted). In contrast, when the nonmoving party bears the
burden of proving the claim or defense, the moving party can
meet its burden in two ways: (1) by presenting evidence to
negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party cannot
establish an element essential to that party's case on
which that party will have the burden of proof at trial.
See Celotex Corp. v. Cartrett, 477 U.S. 317, 323-25
moving party satisfies its initial burden, the burden shifts
to the opposing party to establish that a genuine dispute
exists as to a material fact. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
opposing party need not establish a genuine dispute of
material fact conclusively in its favor. It is sufficient
that “the claimed factual dispute be shown to require a
jury or judge to resolve the parties' differing versions
of truth at trial.” T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987) (quotation marks and citation omitted). “Where
the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no
‘genuine issue for trial.'”
Matsushita, 475 U.S. at 587 (citation omitted). The
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations that are unsupported ...