United States District Court, D. Nevada
RENARD T. POLK, Plaintiff,
TARA CARPENTER, et. al., Defendants.
ORDER REGARDING REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE CARLA B. CARRY
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation of United States
Magistrate Judge Carla B. Carry (ECF No. 93)
(“R&R” or “Recommendation”)
relating to Plaintiff's motion for partial summary
judgment (“Motion”) (ECF No. 63). Judge Carry
recommended that the Court deny Plaintiff's Motion.
Defendant James Donnelly filed a non-opposition to the
R&R (ECF No. 95), and Plaintiff filed objections
(“Objections”) (ECF No. 98). The Court has
reviewed Defendant's response (ECF No. 100).
Court incorporates the background and procedural history from
the R&R. (See ECF No. 93 at 1-2.)
Review of the Magistrate Judge's Recommendations
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 Objections, this Court finds it
appropriate to engage in a de novo review to
determine whether to adopt Magistrate Judge Carry's
R&R. Upon reviewing the R&R and records in this case,
this Court finds good cause to adopt the Magistrate
Judge's R&R in full.
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
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (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, 248-49 (1986). Where reasonable
minds could differ on the material facts at issue, however,
summary judgment is not appropriate. See Id. at
250-51. “The amount of evidence necessary to raise a
genuine issue of material fact is enough ‘to require a
jury or judge to resolve the parties' differing versions
of the truth at trial.'” Aydin Corp. v. Loral
Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting
First Nat'l Bank v. Cities Service Co., 391 U.S.
253, 288-89 (1968)). In evaluating a summary judgment motion,
a court views all facts and draws all inferences in the light
most favorable to the nonmoving party. Kaiser Cement
Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103
(9th Cir. 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., 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 plaintiffs position will be
insufficient.” Anderson, 477 U.S. at 252.
Carry recommended denying Plaintiffs motion for partial
summary judgment because Plaintiff did not present evidence
that he has exhausted his administrative remedies as to his
First Amendment claim. (ECF No. 93 at 4.) Plaintiff still
does not adduce evidence that he exhausted his administrative
remedies in his Objections. (See ECF No. 98 at 1-4.)
Thus, Plaintiff has failed to demonstrate the absence of a
genuine issue of material fact, just ...