United States District Court, D. Nevada
ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE CARLA B. CARRY
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
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' 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.
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
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.)
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.)
background regarding Plaintiff's allegations and
Defendants' responses are explained in detail in the
R&R which this Court adopts.
Review of Magistrate Judge's Recommendation
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).
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.
Summary Judgment Standard
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).
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).
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 ...