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Smith v. Baca

United States District Court, D. Nevada

September 24, 2019

TANIKO SMITH, ELSIE SPELL, Plaintiffs,
v.
ISIDRO BACA, et al., Defendants.

          REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE: ECF NOS. 40, 44

          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. 40, 41-1.) Plaintiffs filed a response and Cross-Motion for Summary Judgment. (ECF Nos. 43, 43-1, 44, 44-1.)[1] Defendants filed a reply in support of their motion (ECF No. 46), and response to Plaintiffs motion (ECF No. 48). Plaintiffs filed a reply in support of their motion. (ECF No. 50.)

         After a thorough review, it is recommended that both motions be denied., except that Defendants' motion should be granted insofar as Plaintiffs seek to recover monetary damages against Defendants in their official capacities.

         I. BACKGROUND

         Plaintiff Taniko Smith is an inmate in custody of the Nevada Department of Corrections (NDOV). Plaintiff Elsie Spell was previously employed as a caseworker at NDOC's High Desert State Prison (HDSP), and is now married to Smith. Plaintiffs, who are proceeding pro se, have brought this action under 42 U.S.C. § 1983. (Am. Compl., ECF No. 16.) On screening, Plaintiffs were allowed to proceed with a Fourteenth Amendment equal protection claim against defendants Northern Nevada Correctional Center's (NNCC) Warden Isidro Baca, NDOC Director James Dzurenda, and John Doe NDOC Deputy Director. (ECF No. 27.)[2] The amended complaint alleges that Defendants denied Spell visitation with Smith, and violated their equal protection rights because they treated Smith differently than similarly situated inmates and Spell differently than similarly situated former NDOC employees who were allowed visitation privileges. (ECF No. 16.)

         Defendants now move for summary judgment, arguing: (1) Plaintiffs have not established that they have been treated differently than similarly situated individuals; (2) the determination to deny Spell's visitation was reasonably based on Spell's prior relationship with Smith during her employment with the NDOC; (3) the "class-of-one" theory of equal protection liability should not apply here because Baca was exercising his discretionary authority when he denied Spell's visitation application; (4) they are entitled to qualified immunity because it was not clearly established that denial of visitation under these circumstances violates the equal protection clause; and (5) Defendants cannot be sued in their official capacity for damages.

         Plaintiffs argue: (1) Defendants are not entitled to qualified immunity; and (2) in denying them visitation, Defendants acted arbitrarily and treated Plaintiffs differently than similarly situated individuals without a rational penological justification.

         II. LEGAL STANDARD

         The legal standard governing this motion is well settled: a party is entitled to summary judgment when “the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Cartrett, 477 U.S. 317, 330 (1986) (citing Fed.R.Civ.P. 56(c)). An issue is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it could affect the outcome of the case. Id. at 248 (disputes over facts that might affect the outcome will preclude summary judgment, but factual disputes which are irrelevant or unnecessary are not considered). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. Anderson, 477 U.S. at 250.

         “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); see also Celotex, 477 U.S. at 323-24 (purpose of summary judgment is "to isolate and dispose of factually unsupported claims"); Anderson, 477 U.S. at 252 (purpose of summary judgment is to determine whether a case "is so one-sided that one party must prevail as a matter of law"). In considering a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citation omitted); Kaiser Cement Corp. v. Fischbach & Moore Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). That being said, "if the evidence of the nonmoving party "is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-250 (citations omitted). The court's function is not to weigh the evidence and determine the truth or to make credibility determinations. Celotex, 477 U.S. at 249, 255; Anderson, 477 U.S. at 249.

         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). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. Matsushita, 475 U.S. at 587. 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.

         III. DISCUSSION

         A. Factual Background

         Plaintiff Smith is an inmate incarcerated within NDOC. Plaintiff Spell was previously employed as a Correctional Caseworker Specialist III with NDOC. According to an NDOC Investigation Detail Report (IR-2015-HDSP-003029), on September 7, 2015, a former inmate called High Desert State Prison (HDSP) claiming to have been in a relationship with Spell. (ECF No. 44-1 at 2.) According to Plaintiffs, the former inmate also reported that Spell was in a relationship with Smith. An investigation commenced the following day-September 8, 2015- by the Inspector General's Office. (Id.) Spell resigned her position that same day, and claims she did so for personal reasons. (ECF No. 44-1 at 73.)[3] Spell asserts that she was not notified before her resignation that she was under investigation. (Spell Affidavit, ECF No. 44-1 at 93.) The investigation was never completed. (Baca Decl., ECF No. 41 at 2 ¶11.) Plaintiff was transferred to NNCC on September 9, 2015. (ECF No. 44 at 5.) It is undisputed that neither Spell nor Smith were ever charged regarding the allegations of the investigation.

         Administrative Regulation (AR) 719 governs visitation within NDOC's facilities. (See ECF No. 44-1 at 17-22.) Concerning visits with former employees, it provides: "Current and former employees of [NDOC] may request visiting privileges with an inmate on an individual basis. The request will be submitted to the Warden for initial consideration and recommendations, and through the appropriate Deputy Director to the Office of the Director for final approval." (Id. at 22.) NDOC Operational Procedure (OP) 714 is consistent with this provision of AR 719 regarding visitation by former employees. (ECF No. 44-1 at 24, OP 714.02.4.)

         Plaintiff Smith sent visiting applications to Spell in December 2015 and January 2016, and Spell sent in a visiting application. (ECF No. 44 at 6; ECF No. 44-1 at 26.) Baca denied the visitation request on February 26, 2016, because Spell was a former NDOC employee. (ECF No. 44-1 at 27.) On March 9, 2016, Spell sent a letter to the Director's Office appealing that decision. She asserted that she was being discriminated against by not being allowed to visit Smith because she is a former employee, stating that other former employees had been approved to visit inmates. She indicated she had no criminal history, she posed no threat to safety or security of the institution, and there was no other reason she should be denied visitation with Smith. (ECF No. 44-2 at 29.)

         She also sent correspondence to the governor's office raising her concerns about the denial of visitation with Smith, and the governor's office responded on March 9, 2016, advising that her correspondence had been forwarded to the interim director of NDOC. (ECF No. 44-1 at 30.) On April 5, 2016, she sent an email to Sarina Rupert in the warden's office stating she had not heard back regarding her appeal of the visitation decision. She also indicated she spoke to Cynthia Keller who told her that she would never be able to visit an inmate as a former employee unless they were married. She reiterated that she did not pose a threat to safety and security of the department, and that other former employees had been approved for visits with inmates who are not married. (ECF No. 44-1 at 31.) She followed up on her email on May 9, 2016, and Ms. Rupert responded on April 20, 2016, advising that she could submit an appeal to Warden Baca. (Id. at 32.) That same date, Spell submitted her appeal letter to Warden Baca. She reiterated her claims of discrimination, and asserted the prison was violating their equal protection rights because other former employees were allowed to visit inmates when they were not married. (ECF No. 44-1 at 33.)

         There is a visitation appeal memorandum denying Spell's appeal signed by Baca on May 10, 2016, and stating: "Ms. Spell was involved with Inmate Smith when she was a CCS III at HDSP. IR # IR-2015-HDSP-3029." It was signed and denied by the deputy director and Director Dzurenda. (ECF No. 44-1 at 49; ECF No. 41-1 at 6, 23.) Spell claims she did not receive this response from Baca by the time this complaint was originally filed on July 29, 2016. (ECF No. 44 at 8.) This is consistent with the allegations of the complaint. (ECF No. 5 at 7 ¶ 26.)

         Spell and Smith were married on August 6, 2016, at NNCC. (See ECF No. 44-1 at 54.)[4]According to Plaintiffs, another visiting application was sent in along with the ...


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