Deluna v. Vare et al
Filing
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ORDER Granting 23 Motion for Summary Judgment. FURTHER ORDERED that the clerk shall close the case and enter final judgment accordingly. Signed by Judge James C. Mahan on 5/18/12. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
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MATEO HERNANDEZ DELUNA,
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Plaintiff,
2:09-cv-01228-JCM-PAL
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vs.
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ORDER
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WARDEN VARE, et al.
Defendants.
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Presently before the court is defendant Lenard Vare’s motion for summary judgment. (Doc.
#23). Pro se plaintiff Mateo H. Deluna failed to file an opposition.
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This 42 U.S.C. § 1983 case arises out of disciplinary charges filed against plaintiff on July 19,
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2004. Plaintiff was provided a copy of the notice of charges on July 26, 2004, and plaintiff attended
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a disciplinary hearing on these charges on August 6, 2004. Plaintiff was found guilty of the charges,
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and disciplinary sanctions were imposed as a result. Plaintiff filed an administrative appeal of the guilty
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findings, which was denied on September 9, 2004.
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On July 8, 2009, plaintiff filed his first application for leave to proceed in forma pauperis. (Doc.
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#1). The court denied plaintiff’s original application to proceed in forma pauperis because the
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application did not conform to 28 U.S.C. § 1915(a)(2) and Local Rule 1-2. (Doc. #2). Plaintiff filed
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an amended application (doc. #3), which the court granted (doc. #4). The court then issued a screening
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order ordering the clerk to file the complaint, dismissing various claims for failure to state a claim, and
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granting plaintiff leave to file an amended complaint. (Doc. #6). The clerk filed the complaint on June
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15, 2010. (Doc. #7). Plaintiff filed a signed amended complaint on January 3, 2011. (Doc. #10).
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On May 9, 2011, the court dismissed several claims in plaintiff’s amended complaint for failure
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to state a claim upon which relief can be granted. (Doc. #12). The order stated that “the court expresses
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no opinion as to whether the claims are subject to affirmative defenses such as untimeliness . . . .”
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(Doc. #12).
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Legal Standard
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Summary judgment is appropriate when, viewing the facts in the light most favorable to the
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nonmoving party, there is no genuine issue of material fact which would preclude summary judgment
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as a matter of law. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996); FED. R. CIV. P. 56(c);
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Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); T.W. Elec. Serv., Inc. v.
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Pacific Elec. Contractors Assn., 809 F.2d 626, 630 (9th Cir.1987). The purpose of summary judgment
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is to “pierce the pleadings and assess the proof in order to see whether there is a genuine need for trial.”
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Matsushita Elec., 475 U.S. at 586; International Union of Bricklayers v. Martin Jaska, Inc., 752 F.2d
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1401, 1405 (9th Cir. 1985).
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The moving party bears the burden of informing the court of the basis for its motion, together
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with evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp.v. Catrett,
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477 U.S. 317, 323 (1986); see also Orr v. Bank of America, 285 F.3d 764 (9th Cir. 2002) (expressing
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the standard for authentication of evidence on a motion for summary judgment). Once the moving party
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has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by
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affidavits, depositions, answer to interrogatories, or admissions on file, "specific facts showing that
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there is a genuine issue for trial." Celotex Corp., 477 U.S. 317, 324; FED. R. CIV. P. 56(c).
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Pursuant to Nevada Local Rule 7-2(d), “the failure of an opposing party to file points and
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authorities in response to any motion shall constitute a consent to the granting of the motion.”
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However, the court will not automatically grant every unopposed motion. As the Ninth Circuit stated
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in Martinez v. Stanford, 323 F.3d 1178, 1182-83 (9th Cir. 2003), a district court cannot grant a motion
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for summary judgment merely based on the fact that the opposing party failed to file an opposition. The
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court in Martinez held that the failure to oppose the motion does “not excuse the moving party’s
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affirmative duty under Rule 56 to demonstrate its entitlement to judgment as a matter of law.” Id.
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Discussion
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“The applicable statute of limitations for 42 U.S.C. § 1983 claims is the limitations period for
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personal injury claims.” Chachas v. City of Ely, Nev., 615 F. Supp. 2d 1193, 1202 (D. Nev. 2009)
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(citing Perez v. Seevers, 869 F.2d 425, 426 (9th Cir. 1989)). Thus, the statute of limitations for claims
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brought pursuant to § 1983 in Nevada is two years. Id.; NRS 11.190(4). “Under federal law, a claim
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accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action.”
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Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (internal quotations omitted).
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Here, defendant argues that plaintiff’s claims are barred by the statute of limitations even if the
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court uses the earliest possible filing date. (Doc. #23). Plaintiff filed his first application to proceed
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in forma pauperis on June 8, 2009. (Doc. #1). Therefore, applying the two-year statute of limitations,
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plaintiff “would have had to know, or have had reason to know, of the injury which is the basis for this
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action no later than July 8, 2007.” (Doc. #23). Defendant further argues that plaintiff had knowledge
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of his claimed injuries on August 6, 2004, when he was found guilty of the disciplinary charges and
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suffered disciplinary sanctions. (Doc. #23). Accordingly, plaintiff filed his motion to proceed in forma
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pauperis approximately 2 years and 11 months after the statute of limitations had expired. (Doc. #23).
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Defendant has met the burden of informing the court of the basis for the motion, together with
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evidence demonstrating the absence of any genuine issue of material fact. Celotex Corp, 477 U.S. at
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323. Plaintiff knew or should have known of the alleged injury underlying this action after his August
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6, 2004, disciplinary hearing. Nevertheless, plaintiff did not initiate any court proceedings on these
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claims until June 8, 2009. (Doc. #1). This is well-outside of the applicable two-year statute of
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limitations. Chachas, 615 F. Supp. 2d at 1202; NRS 11.190(4).
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Plaintiff has failed to respond or oppose this motion. Therefore, he has failed to demonstrate
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“specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 at 324; FED. R. CIV.
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P. 56(c); see also Local Rule 7-2(d).
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Accordingly,
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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Lenard Vare’s
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motion for summary judgment (doc. #23) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that the clerk of court shall close the above-captioned case and
enter final judgment accordingly.
DATED May 18, 2012.
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_________________________________
JAMES C. MAHAN
United States District Judge
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