United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 39
WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE
Report and Recommendation is made to the Honorable Miranda M.
Du, 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 Defendants' Motion for Summary Judgment.
(ECF Nos. 39, 39-1 to 39-13; 42-1 to 42-4 (supplemental
exhibits).) Plaintiff filed a response. (ECF No. 43.)
Defendants filed a reply. (ECF No. 45.)
thorough review, it is recommended that Defendants'
motion be granted.
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. 5.) The
events giving rise to this action took place while Plaintiff
was housed at Warm Springs Correctional Center (WSCC).
(Id.) Defendants are Randy Fisher, David Frobes,
Michael Peabody, and Ruben Vidaurri. Defendant Agualia was
dismissed without prejudice because Plaintiff did not timely
serve her with the summons and complaint. (ECF No. 31.)
screening, Plaintiff was allowed to proceed as follows: (1)
against Fisher and Frobes: a Fourth Amendment claim for an
unreasonable strip search; a retaliation claim; a due process
claim for denial of access to the grievance process; and
claims that his rights were violated under the Religious Land
Use and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. § 2000cc, et. al., and the First Amendment Free
Exercise Clause; (2) a retaliation claim against Vidaurri,
Agualia and Sergeant Doe; (3) against Peabody: a
retaliation claim and due process claims. (ECF No. 4.)
Fisher & Frobes: Fourth Amendment Strip Search;
Retaliation; Due Process Denial of Access to the Grievance
Process; RLUIPA; First Amendment Free Exercise
alleges that he is a Muslim whose Islamic faith dictates a
high level of modesty. On March 7, 2016, he claims that
Fisher forced Plaintiff to strip and expose his genitals and
anal cavity to multiple inmates and officers, some of whom
were very close to Plaintiff, and at least one of whom was
not male. Plaintiff asserts that he begged Fisher not to
conduct the search in front of others, and voiced his
religious objection, but Fisher disregarded him, and ordered
the search to proceed. Plaintiff contends that Frobes ordered
the strip search conducted by Fisher. Plaintiff avers that
the pretext for the search was to find a pair of missing
eye-glasses. Plaintiff states that it was unreasonable to
expect that a pair of glasses would be found in
strip search occurred after Plaintiff had filed two
grievances against two well-known officers for making sexual
comments. He contends that he had to "evacuate" the
grievances to prevent further retaliation.
alleges the search was pretextual and retaliatory since
Plaintiff had filed grievances against staff, Plaintiff
begged to have a more private search and Fisher refused, and
it was unreasonable because the reason given for the search
was to look for a pair of missing glasses.
alleges that he was involved in grieving multiple issues
against multiple prison officials. Sergeant Doe filed a
notice of charges against Plaintiff, which did not include
any details. Instead, it only stated that on June 19, 2016,
Plaintiff assaulted another inmate. Plaintiff alleges that
Vidaurri investigated the alleged assault, and found ample
evidence to prove Plaintiff could not have participated in
the assault, but ignored this evidence and refused to follow
up on substantial leads pointing to the true perpetrators.
Plaintiff alleges that Vidaurri chose to manufacture a report
which framed Plaintiff as the perpetrator in the alleged
assault. When Plaintiff confronted Vidaurri about the report,
Vidaurri told Plaintiff the charges were written by Sergeant
Doe, and that the charges were related to all of the
grievances Plaintiff had filed. (Id.)
Peabody: Retaliation and Due Process Claims
alleges that Sergeant Peabody found Plaintiff guilty of the
assault and related charges without any evidence. Plaintiff
requested to review camera footage, but was denied, and
claims that the victim never even accused Plaintiff.
Plaintiff asserts that no camera footage or informant placed
Plaintiff in the area of the assault. On the other hand,
Plaintiff alleges that he had a witness-Correctional Officer
Robertson-who placed Plaintiff in a different location at the
time of the assault, but Plaintiff was not allowed to call
contends that he was found guilty without any evidence in
retaliation for filing grievances against staff. In addition,
he alleges that his due process rights were violated because
his conviction was based on fabricated charges; was not based
on sufficient evidence; and he was not allowed to call his
Plaintiff claims that he was improperly denied a parole
hearing on August 29, 2016, and lost of good time credits,
because on the false charges filed against him. He avers that
he may have received a release date of September 6, 2016 at
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 by
factual data. Id. Instead, the opposition must go
beyond the assertions and allegations of the pleadings and
set forth specific facts by producing competent evidence that
shows a genuine dispute of material fact for trial.
Celotex, 477 U.S. at 324.
summary judgment, the court's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine dispute of material fact for trial.
See Anderson, 477 U.S. at 249. While the evidence of
the nonmoving party is “to be believed, and all
justifiable inferences are to be drawn in its favor, ”
if the evidence of the nonmoving party is merely colorable or
is not significantly probative, summary judgment may be
granted. Id. at 249-50 (citations omitted).
move for summary judgment, arguing: (1) Fisher was not
personally involved in the alleged strip search; (2)
the court notes that Plaintiff's response to
Defendants' motion contains no declaration from Plaintiff
or any other evidence in support of his terse arguments.
Instead, Plaintiff merely asks the court for summary judgment
to be awarded to him because Defendants violated his rights
and their motion is without grounds. (ECF No. 43.) In
addition to being unsupported by any evidence, the opposition
is devoid of any facts to support the brief and
conclusory arguments asserted.
Defendants argue that Fisher was not personally involved in
the alleged search, retaliation, denial of the grievance
process, or infringement of Plaintiff's religious rights.
Fisher submits evidence that he did not work at WSCC on March
7, 2016, but worked at LCC. (ECF No. 39-2 at 2; Fisher Decl.,
ECF No. 42-1 ¶ 5.)
provides no argument or evidence to dispute that Fisher was
not personally involved in the alleged search, retaliation,
denial of the grievance process, or infringement of
Plaintiff's religious rights under RLUIPA and the First
Amendment. Therefore, summary judgment should be granted as
to all claims asserted against Fisher.
The Strip Search
retain basic constitutional rights. Turner v.
Safley, 482 U.S. 78, 84 (1987) (“Prison walls do
not form a barrier separating prison inmates from the
protections of the Constitution.”). The right at issue
is the Fourth Amendment right to be free from
“unreasonable searches and seizures.” U.S.
Const., amend IV. “[S]imply because prison inmates
retain certain constitutional rights does not mean that these
rights are not subject to restrictions and
limitations.” Bell v. Wolfish, 441 U.S. 520,
545 (1979). The reasonableness of a particular search is
examined in reference to the prison context. Michenfelder
v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988).
The test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application. In
each case it requires a balancing of the need for the
particular search against the invasion of personal rights
that the search entails. Courts must consider the scope of
the particular intrusion, the manner in which it is