United States District Court, D. Nevada
DONALD E. MITCHELL, JR., Plaintiff
STATE OF NEVADA, et al., Defendants
ORDER GRANTING IN PART DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT, DENYING PLAINTIFF'S MOTION TO STAY, AND
DENYING PLAINTIFF'S MOTION FOR RELIEF [ECF NOS. 25, 34,
P. GORDON, UNITED STATES DISTRICT JUDGE.
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).
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.
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
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.
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.
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.
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 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.
Summary Judgment Standard
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
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
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.
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)). “Summary judgment in the face of
requests for additional discovery is appropriate only where
such discovery would be ...