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Mitchell v. State

United States District Court, D. Nevada

October 23, 2019

STATE OF NEVADA, et al., Defendants



         Plaintiff Donald Mitchell, Jr. sues for two incidents that took place while he was a prisoner in a Nevada Department of Corrections (NDOC) facility. I previously screened Mitchell's complaint under 28 U.S.C. § 1915A and allowed his Count I retaliation claim and Count II retaliation and due process claims to proceed. Defendants Carrie Alvarado, Timothy Filson, Jerry Howell, Bianca Knight, Dwight Neven, and Perry Russell (collectively, the defendants) move for summary judgment on all remaining claims, arguing that Mitchell has not exhausted his administrative remedies, his claims are without merit, and the defendants are entitled to qualified immunity. Mitchell moves for a stay of this motion and relief from my prior dismissal of defendant Anthony Warren under Federal Rule of Civil Procedure 4(m).

         Because Mitchell failed to exhaust administrative remedies with respect to his claims arising from the April 25, 2016 incident, I grant the defendants' motion for summary judgment on Count II. But I deny the defendants' motion on Count I against defendants Alvarado and Knight because they do not meet their initial summary judgment burden. And I deny Mitchell's motions because they are moot or futile.

         I. BACKGROUND[1]

         Mitchell is an inmate at NDOC's High Desert State Prison (HDSP). ECF No. 4 at 1. On February 18, 2016, Mitchell and a correctional officer, Alvarado, engaged in a verbal dispute, during which Alvarado cursed out Mitchell. Id. at 4. In response, Mitchell told Alvarado that administrative regulations prohibited unprofessional conduct, and he requested a grievance. Id. at 5. Alvarado denied the request, telling Mitchell that he had a “trick for your ass.” Id. Later that day, Mitchell's inmate classification was reduced from level three to level two and Mitchell was assigned to a cell with a notoriously violent inmate. Id. at 5-6. After Mitchell asked about the reduction, Knight told Mitchell that she hated inmates who filed grievances and referenced Mitchell's earlier encounter with Alvarado. Id. at 6. Mitchell's Count I retaliation claim arises out of this incident.

         Three days later, Mitchell called an unidentified person and told her about the incident. ECF No. 26 at 3 (CD containing audio recording). That person asked Mitchell if he told the NDOC employee responsible for his level reduction about his violent potential cellmate. Id. Mitchell responded by stating “you already know what I did” and “do best.” Id. The other caller responded, “[w]rite it up.” Id. Mitchell then added, “I am going for a retaliation claim saying they put my safety in jeopardy.” Id.

         Count II of Mitchell's complaint arises out of another verbal altercation between Mitchell and Knight on April 25, 2016. ECF No. 4 at 8. Shortly after the dispute, Brown asked Mitchell if he had chest pains, explaining that Knight had told Brown that Mitchell was experiencing chest pains. Id. Mitchell denied having chest pains. Id. Knight then filed charges against Mitchell for “Giving False Information” and “Delaying, Hindering, Interfering with Staff.” Id. at 6-7; ECF No. 26 at 16. On June 4, 2016, Mitchell was found guilty on both charges. Id. at 12.

         Mitchell filed an informal grievance regarding the April 25 incident. Id. at 33. After the informal grievance was denied, Mitchell filed a first-level grievance in July 2016, which was also denied. Id. at 29-30. Mitchell filled out a second-level grievance, which was stamped as received by the HDSP warden on September 5, 2016. Id. at 28. However, the second-level grievance was marked “[r]ejected - [r]e-file” on grounds that Mitchell failed to follow protocols and file the grievance in the grievance box or with a caseworker. Id. at 27-28. The grievance was returned to Mitchell, who signed for the memorandum rejecting the grievance on September 19, 2016. Id. While the initial grievance was pending, Mitchell filed another informal grievance relating to the April 25, 2016 incident. Id. at 63. Defendant Howell denied this grievance as duplicative of Mitchell's first grievance. Id. at 62.

         In 2018, I issued an order screening Mitchell's complaint under 28 U.S.C. § 1915A. ECF No. 3. I found that Count I made out a viable retaliation claim against defendants Alvarado and Knight, and against defendants Filson and Bruce Stroud[2] based on supervisory liability for their role in responding to Mitchell's grievances. Id. at 4-6. I also determined that Count II made out viable retaliation and due process claims against defendants Knight, Neven, Russell, and Warren, and against defendants Howell and Stroud based on supervisory liability. Id. at 7-10. Alvarado, Filson, Howell, Knight, Neven, and Russell now move for summary judgment. ECF No. 25.


         A. Summary Judgment Standard

         The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings, discovery responses, and affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See Id. “Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor.” Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103-04 (9th Cir. 1999)). A principal purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         In determining summary judgment, a court applies a burden-shifting analysis. 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 failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 323-24. If the moving party fails to meet its initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970).

         At summary judgment, a court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. The nonmovant's evidence is “to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. But if the nonmoving party's evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Id. at 249-50.

         “Courts should construe liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010). In pro se prisoner cases, summary judgment is disfavored when discovery requests for relevant evidence are pending. See Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 2004) (citing Fed.R.Civ.P. 56(f)). ‚ÄúSummary judgment in the face of requests for additional discovery is appropriate only where such discovery would be ...

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