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Jensen v. Brendel

United States District Court, D. Nevada

September 25, 2019

THOMAS JENSEN, Plaintiff,
v.
ADAM BRENDEL, et al., Defendants.

          ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE CARLA B. CARRY

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Plaintiff Thomas Jensen, an incarcerated person in the custody of the Nevada Department of Corrections (“NDOC”), brought this civil rights action under 42 U.S.C. § 1983. Before the Court is the Report and Recommendation of United States Magistrate Judge Carla B. Carry (“R&R”) recommending that the Court grant Defendants’[1] motion for summary judgment on Plaintiff’s first amended complaint (“FAC”) (“Motion”) (ECF No. 35) and deny other pending motions (ECF Nos. 29, 30) as moot. (ECF No. 44.)[2] Plaintiff filed an objection (“Objection) (ECF No. 45) to which Defendants have not responded. For the reasons below, the Court overrules the Objection and adopts the R&R.

         II. BACKGROUND

         The events giving rise to this case occurred while Plaintiff was housed at the Northern Nevada Correctional Center (NNCC). (ECF No. 6 at 1.) On screening, the Court allowed Plaintiff to proceed with Counts I-V in the FAC. (ECF Nos. 6, 9.) These counts consist of claims for retaliation, access to the courts, due process violations, conspiracy, and 42 U.S.C. § 1985(3) conspiracy. (ECF No. 6 at 5–8, 10.)

         Plaintiff’s claims stem from an incident involving Plaintiff and another inmate, during which Plaintiff alleges he was assaulted by the other inmate while working in culinary. (Id. at 3, 5.) However, Plaintiff’s lawsuit is grounded on his allegations that Defendants threatened him with retaliation if he reported the incident, subjected and disciplined him based on false charges, threatened him with disciplinary action in the form of transfer to a maximum security prison for reporting the incident, and relatedly threatened him in retaliation if he filed a grievance. (ECF Nos. 6, 9.) Plaintiff also claims that both Defendants Buchanan and Howard refused to accept Plaintiff’s complaints about staff misconduct and thereby impeded Plaintiff’s ability to file a grievance on the matter. (ECF No. 6 at 3–4, ECF No. 9 at 4.)

         Further background regarding Plaintiff’s allegations and Defendants’ responses are explained in detail in the R&R which this Court adopts.

         III. LEGAL STANDARD

         A. Review of Magistrate Judge’s Recommendation

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge’s report and recommendation, then the court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1).

         In light of Plaintiff’s Objection, the Court undertakes de novo review to determine whether to adopt Magistrate Judge Carry’s R&R. Upon reviewing the R&R, the briefs and records in this case, the Court adopts the ultimate result in the R&R although it reaches different conclusions along the way.

         B. Summary Judgment Standard

         “The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, ” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson, 477 U.S. at 252. Moreover, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

         For purposes of opposing summary judgment, the contentions offered by a pro se litigant in motions and pleadings are admissible to the extent that the contents are based on personal knowledge and set forth facts that would be admissible into evidence and the litigant attested under penalty of ...


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