United States District Court, D. Nevada
before the court is defendants Jayson Artinger, Joshua
Barfield, Regina Barrett, Rebecca Boyd, Andrew Bulfer, Vance
Crowder, Robert Douglas, Joseph Dugan, Antonio Garcia, Terrel
Gregory, Jonathan Hester, Salvatore Marino, Julie Matousek,
Dwight Neven, Dean Ontiveros, Charles Pascascio, Alan
Richardson, Juan Sotomayor, April Witter, and Juan
Zelaya's (collectively “served defendants”)
motion for summary judgment. (ECF No. 162). Plaintiff Victor
Tagle filed a response (ECF No. 167), to which the served
defendants replied (ECF No. 168).
before the court is Magistrate Judge Peggy A. Leen's
report and recommendation. (ECF No. 156). Plaintiff filed an
objection. (ECF No. 160). The relevant individual defendants
have not been served and were unable to file a response.
a prisoner civil rights case pursuant to 28 U.S.C. §
1983. See (ECF No. 23). Plaintiff, who is a prisoner
in the custody of the Nevada Department of Corrections
(“NDOC”), proceeds pro se and in
forma pauperis. (ECF Nos. 1, 8).
alleges that defendants, who are NDOC employees, violated his
constitutional rights by (1) refusing to deliver, send, and
receive his mail; (2) refusing to mail his habeas corpus
petition to the court; (2) removing or altering documents
from plaintiff's outgoing mail to the court; (3) removing
plaintiff's legal work from his boxes; (4) confiscating
discovery materials; and (5) destroying legal boxes and mail
in plaintiff's cell. (ECF No. 23).
April 5, 2016, plaintiff initiated this action. (ECF No. 1).
In the amended complaint, plaintiff asserts four causes of
action: (1) interference with mail in violation of the First
Amendment; (2) denial of access in violation of the First
Amendment; (3) violation of the Due Process Clause of the
Fourteenth Amendment; and (4) supervisory liability.
See (ECF No. 23).
April 13, 2018, the parties commenced discovery. (ECF No.
47). After nearly a year, the parties were unable to produce
documents showing that plaintiff filed grievances for the
constitutional violations that plaintiff alleges in his
amended complaint. See (ECF Nos. 162, 167). Now, the
served defendants move for summary judgment. (ECF No. 162).
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “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 issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
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 non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of 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 the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by ...