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Anderson v. Nevada Department of Corrections

United States District Court, D. Nevada

March 21, 2019

JOSEPH M. ANDERSON, Plaintiffs,
v.
NEVADA DEPARTMENT OF CORRECTIONS et al., Defendants.

          ORDER

          ROBERT C. JONES United States District Judge.

         Before the Court is the Plaintiffs last surviving claim, a 42 U.S.C. § 1983 action, against the Defendant, Jethro Parks, for retaliation for rights guaranteed by Religious Land Use and Institutionalized Persons Act (RLUIPA). The case arises out of an incident where the Defendant searched the Plaintiffs prison cell and confiscated items purported to be used in religious practices allegedly in retaliation towards the Plaintiffs religion. Now pending is Magistrate Judge William G. Cobb's Report and Recommendation ("R&R"). (ECF No. 205.) Because Judge Cobb found that genuine disputes of material fact remained, he recommended that the Court dismiss both Plaintiffs Motion for Partial Summary Judgment (ECF No. 183) and Defendant's Renewed Motion for Summary Judgment (ECF No. 193). The Court finds that there is no genuine dispute of material fact and adopts the R&R in part and rejects the R&R in part. The Court dismisses the Plaintiffs Motion for Partial Summary Judgment and grants die Defendant's Renewed Morion for Summary Judgment.

         I. BACKGROUND

         The Court agrees with and adopts the R&R's summary of the background of this case.

         II. LEGAL STANDARDS

         A. Retaliation

         Under the Ninth Circuit case law, a prisoner can state a claim for retaliation for rights guaranteed by RLUIPA when five elements are satisfied:

(1) An assertion mat a state actor took some adverse action against an inmate
(2) because of
(3) that prisoner's protected conduct, and that such action
(4) chilled the inmate's exercise of his rights, and
(5) the action did not reasonably advance a legitimate correctional goal.

Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015) (citation omitted).

         "[A] retaliation claim may assert an injury no more tangible than a chilling effect on [the exercise of the plaintiffs] rights." Gomez v. Vernon,255 F.3d 1118, 1127 (9th Cir. 2001), citing Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997). "[T]he mere threat of harm can be an adverse action, regardless of whether it is carried out because the threat itself can ...


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