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Tagle v. State

United States District Court, D. Nevada

October 24, 2019

VICTOR TAGLE, Plaintiffs,
v.
STATE OF NEVADA, Defendants.

          ORDER

         Presently 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).

         Also before the court is plaintiff's second petition for writ of mandamus. (ECF No. 99).

         Also 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).

         Also 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).

         Also before the court is plaintiff's motion for entry of clerk's default. (ECF No. 74). Defendants filed a response. (ECF No. 75).

         Also before the court is plaintiff's request for submission. (ECF No. 100). . . .

         I. Background

         This is 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).

         On 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).

         II. Legal Standard

         The 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).

         For 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.

         In 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).

         By 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).

         If the 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. 1987).

         In 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.

         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 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.

         III. Discussion

         A. Default judgment and entry of clerk's default

         Obtaining 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).

         The 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 ...


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