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Kirkpatrick v. Nevada Department of Corrections

United States District Court, D. Nevada

May 10, 2019

EPHRAIM KIRKPATRICK, Plaintiff,
v.
NEVADA DEPARTMENT OF CORRECTIONS, et. al., Defendant.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE [1]

         Plaintiff Ephraim Kirkpatrick (“Plaintiff”) filed the instant lawsuit against Defendants the Nevada Department of Corrections and Harold Wickham. (Collectively referred to as “Defendants”) pursuant to the American with Disabilities Act (“ADA”). Currently pending before the Court is Defendants' motion for summary judgment. (ECF No. 26.) Plaintiff did not file an opposition and no reply was filed. Having thoroughly reviewed the record and motions, the Court recommends Defendants' motion for summary judgment be granted.

         I. BACKGROUND

         A. Procedural History

         Plaintiff was an inmate in the custody of the Nevada Department of Corrections (“NDOC”) until his release in 2019. The events giving rise to this lawsuit arose between 2014 and 2017 while Plaintiff was incarcerated at the Warm Springs Correctional Center (“WSCC”) in Carson City, Nevada. Proceeding pro se, Plaintiff filed the instant case pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C.§ 1213, against the NDOC, the NDOC Offender Management Division, and Harold Wickham seeking injunctive relief and monetary damages. The complaint was received by the court, along with Plaintiff's motion to proceed in forma pauperis, on April 3, 2017. (ECF No. 1.) Pursuant to 28 U.S.C. § 1915A(a), the Court screened Plaintiff's complaint on May 2, 2018, and determined that Plaintiff's ADA claim could proceed. (ECF No. 15.)

         B. Factual Background

         The facts of this case are simple. Plaintiff asserts that staring in 2014 and continuing through 2017, Defendants failed to give him good time and work time credits that he was entitled to while he was incarcerated at WSCC. (ECF No. 16 at 3.) Plaintiff claims he was unable to work due to his disabilities. As a result, Defendants allegedly added six days to Plaintiff's sentence for every month he did not have work - amounting to 72 additional days on his sentence for each year he could not work. (Id.)

         C. NDOC Grievance Procedure

         Prior filing a civil lawsuit, inmates must exhaust all available administrative remedies through the grievance process established by the NDOC. Administrative Regulation (“AR”) 740 governs the grievance process at NDOC institutions. (ECF No. 26-1). It provides for a three-step grievance process. The first step requires the inmate to file an informal grievance within six months “if the issue involves personal property damages or loss, personal injury, medical claims or any other tort claims, including civil rights claims.” (Id. at 2.) If the inmate fails to submit the informal grievance within this period “shall constitute abandonment of the inmate's claim at this, and all subsequent levels.” (Id. at 6.) NDOC staff is required to respond within forty-five days. (Id. at 7.)

         If the inmate is dissatisfied with the informal response, he or she must file a First Level within five days, which in effect is an appeal of the informal grievance. (Id. at 8.) At the first level, the inmate must “provide a signed, sworn declaration of facts that form the basis for a claim that the informal response is incorrect, ” and attach “[a]ny additional relevant documentation.” (Id. at 7.) The grievance is reviewed by an official of a higher level, who has forty-five days to respond. (Id. at 8.)

         Finally, if the inmate is dissatisfied with the First Level response, the inmate may appeal to the second level within 5 days, which is subject to still-higher review. (Id.) Officials are to respond to a second-level grievance within sixty days from the date the grievance is received by the grievance counselor, specifying the decision and the reasons the decision was reached. (Id.) Once an inmate receives a response to the second-level grievance, he or she is considered to have exhausted available administrative remedies and may pursue civil rights litigation in federal court.

         D. Plaintiff's Grievance

         Plaintiff filed an informal grievance asserting his allegations that he was discriminated by the NDOC based on his disabilities on December 2, 2016. (ECF No. 36-1 at 8) (corrected image of ECF No. 26, Ex. 2). This grievance was assigned Grievance No. 2006-30-22342. (Id.) This grievance was denied at both the informal and First Levels pursuant to AR 740. (Id.). On March 15, 2017, Plaintiff filed a Second Level grievance for Grievance No. 2003-30-22342. (ECF No. 26-3 at 002). Based on AR 740, the NDOC had 60 days from the date the grievance was received by the grievance counselor. (ECF No. 26-1 at 8). The Second Level grievance was received by the grievance counselor on March 23, 2017. Therefore, the NDOC had until May 22, 2017 to provide a response. Ultimately, the Second Level Grievance was denied by a response by the NDOC on August 31, 2017. (ECF No. 26-3 at 001).

         C. Motion for Summary Judgment

         On October 30, 2018, Defendants filed the instant motion for summary judgment arguing Plaintiff's claims should be dismissed on the following three grounds: (1) Plaintiff failed to properly exhaust his administrative remedies prior to filing this lawsuit; (2) the claims in this case are barred by Heck ...


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