United States District Court, D. Nevada
before the court is pro se plaintiff Victor
Tagle's (“plaintiff”) petition for writ of
mandamus. (ECF No. 87). The State of Nevada filed a response
(ECF No. 90), to which plaintiff replied (ECF No. 94).
before the court is plaintiff's second petition for writ
of mandamus. (ECF No. 99).
before the court is defendant Venus Fajota, Anthony Ritz,
Janice Salazar, and Larry Wuest's
(“defendants”) motion for summary judgment. (ECF
No. 91). After this court granted plaintiff an extension of
time to file a response, plaintiff did so on October 7, 2019.
(ECF No. 98). Defendants replied. (ECF No. 101).
before the court is plaintiff's motion for default
judgment. (ECF No. 85). Defendants filed a response (ECF No.
86), to which plaintiff replied (ECF No. 89).
before the court is plaintiff's motion for entry of
clerk's default. (ECF No. 74). Defendants filed a
response. (ECF No. 75).
before the court is plaintiff's request for submission.
(ECF No. 100). . . .
a prisoner civil rights case pursuant to 28 U.S.C. §
1983. (See ECF No. 23). Plaintiff, who is a prisoner
in the custody of the Nevada Department of Corrections
(“NDOC”), proceeds pro se and in
forma pauperis. (ECF Nos. 1, 8).
October 30, 2015, plaintiff initiated this action. (ECF No.
1). Plaintiff's twenty-count complaint was screened by
the court. (ECF No. 7). The court found that plaintiff
alleged colorable claims against defendants, who are NDOC
employees, for violating his constitutional rights by (1)
intentionally withdrawing money from plaintiff's inmate
account for duplicative and frivolous charges; (2)
retaliating against him by sending plaintiff to disciplinary
segregation for filing a kite; (3) tampering with
plaintiff's outgoing mail; and (4); retaliating against
him by sending plaintiff to disciplinary segregation for
filing a lawsuit and complaining that his cellmate had stolen
his legal documents. (ECF No. 8).
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). 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).
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).
contrast, 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 non-moving 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).
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by producing competent evidence that
shows a genuine issue for trial. See Celotex, 477
U.S. at 324.
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 v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The
evidence of the nonmovant is “to be believed, and all
justifiable inferences are to be drawn in his favor.”
Id. at 255. But if the evidence of the nonmoving
party is merely colorable or is not significantly probative,
summary judgment may be granted. See Id. at 249-50.
Default judgment and entry of clerk's default
a default judgment is a two-step process. Eitel v.
McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First,
“[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise, the clerk
must enter the party's default.” Fed.R.Civ.P.
55(a). The rule then provides that “a court may enter a
default judgment after the party seeking default applies to
the clerk of the court as required by subsection (a) of this
rule.” Fed.R.Civ.P. 55(b)(2).
court denies plaintiff's motion for default judgment and
motion for entry of clerk's default. (ECF Nos. 74, 85).
As this court indicated in its prior order (ECF No. 66)
denying plaintiff's initial motion for entry of
clerk's default (ECF No. 63), defendants have appeared in