United States District Court, D. Nevada
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NOS. 40, 44
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. 40, 41-1.) Plaintiffs filed a response and
Cross-Motion for Summary Judgment. (ECF Nos. 43, 43-1, 44,
44-1.) 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.)
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.
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.) 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.)
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.
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
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.
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.
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). 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.
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.) 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.
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.)
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.)
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.)
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.)
and Smith were married on August 6, 2016, at NNCC.
(See ECF No. 44-1 at 54.)According to Plaintiffs,
another visiting application was sent in along with the