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Neal Sales v. Adamson

United States District Court, D. Nevada

March 18, 2019

NEAL SALES, Plaintiff,
v.
KIM ADAMSON, et al., Defendants.

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NO. 26

          William G. Cobb United States Magistrate Judge.

         This 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 1-4.

         Before 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.)

         After a thorough review, it is recommended that Baros' motion 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. (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.)

         Plaintiff 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.)

         Plaintiff's 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.

         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 Plaintiff.

         II. LEGAL STANDARD

         “The 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).

         In 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.

         In 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 (1986).

         If the 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 ...


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