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Green v. Agualia

United States District Court, D. Nevada

June 3, 2019

BRANDON GREEN, Plaintiff
v.
LT. AGUALIA, et. al., Defendants

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NO. 39

          WILLIAM G. COBB, UNITED STATES MAGISTRATE JUDGE

         This 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.

         Before 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.)

         After a thorough review, it is recommended that Defendants' motion be granted.

         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. 5.) The events giving rise to this action took place while Plaintiff was housed at Warm Springs Correctional Center (WSCC). (Id.)[1] 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.)

         On 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[2] and Sergeant Doe[3]; (3) against Peabody: a retaliation claim and due process claims. (ECF No. 4.)

         A. Fisher & Frobes: Fourth Amendment Strip Search; Retaliation; Due Process Denial of Access to the Grievance Process; RLUIPA; First Amendment Free Exercise

         Plaintiff 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 Plaintiff's anus.

         The 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.

         Plaintiff 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.

         B. Vidaurri: Retaliation

         Plaintiff 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.)

         C. Peabody: Retaliation and Due Process Claims

         Plaintiff 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 his witness.

         Plaintiff 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 witnesses.

         Finally, 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 that hearing.

         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 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.

         At 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).

         Defendants move for summary judgment, arguing: (1) Fisher was not personally involved in the alleged strip search; (2)

         III. DISCUSSION

         Preliminarily, 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.

         A. Fisher

         First, 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.)

         Plaintiff 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.

         B. Frobes

         1. The Strip Search

         a. Standard

         Prisoners 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 ...

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