Clark v. Neven

Filing 33

ORDER Granting 23 Motion to Dismiss/Motion for Summary Judgment; and Denying as Moot 31 Motion to Dismiss Defendant Neven. Clerk is instructed to close the case. Signed by Judge Roger L. Hunt on 6/27/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MICHAEL CLARK,

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Plaintiff,
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vs.
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D.W. NEVEN; MS. PHARRIS,
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Defendants.
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_______________________________________)

Case No.: 2:10-cv-00944-RLH-RJJ
ORDER
(Motion to Dismiss–#23; Motion to
Dismiss–#31)

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Before the Court is Defendants Dwight W. Neven (sued as D.W. Neven) and

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Trinity Pharris’ (sued as Ms. Pharris) Motion to Dismiss/Motion for Summary Judgment (#23,

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filed Jan. 14, 2011). The Court has also considered Plaintiff Michael Clark’s Opposition (#26,

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filed Jan. 31, 2011), and Defendants’ Reply (#27, filed Feb. 2, 2011).

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Also before the Court is Plaintiff’s Motion to Dismiss (#31, filed Apr. 7, 2011),
requesting the Court dismiss Defendant D.W. Neven. Defendants did not file an opposition.
BACKGROUND
Plaintiff claims Defendants Neven and Pharris violated his constitutional rights

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while Plaintiff was an inmate at High Desert State Prison in Indian Springs, Nevada. Specifically,

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while Plaintiff was in the prison’s segregation unit he alleges Defendant Pharris, the prison’s law

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librarian, violated his constitutional right of access to the courts by refusing to respond to his

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request for legal mail pick-up, thereby delaying the filing of two already overdue motions in a

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separate lawsuit (Clark v. Guerrero, No. 2:09-cv-00141-JCM-PAL). Plaintiff includes Defendant

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Neven in this claim because Neven, as warden of the prison, is responsible for facilitating access

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to the law library and giving notice of any change in access for those in the prison’s segregation

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unit. Plaintiff also alleges Defendant Pharris yelled at him in an intimidating voice, threatened to

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ban him from the law library, refused him reentry to the law library, and filed false disciplinary

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charges against him, all in retaliation for filing a grievance against Defendant Pharris and a lawsuit

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against the law library.

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Plaintiff originally commenced this action in state court on April 27, 2010, alleging

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several constitutional violations. Defendant Neven removed the action to this Court on June 17.

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Pursuant to the Prison Litigation Reform Act, 28 U.S.C. § 1915A(a), the Court then screened

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Plaintiff’s complaint and allowed the following two claims to proceed: First Amendment access to

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the courts, and First Amendment retaliation. Defendants then filed this motion to dismiss or,

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alternatively, for summary judgment, requesting dismissal of these two claims. Plaintiff also filed

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a motion to dismiss Defendant Neven from his First Amendment access to the courts claim. For

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the reasons discussed below, the Court grants Defendants’ motion to dismiss/motion for summary

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judgment and denies Plaintiff’s motion to dismiss Defendant Neven as moot.

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DISCUSSION
I.

Defendants’ Motion
A.

Summary Judgment Legal Standard
Summary judgment is appropriate when the evidence shows “there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

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Civ. P. 56(a). An issue of material fact exists “if there is sufficient evidence for a reasonable jury

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to return a verdict for the non-moving party.” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir.

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2010) (quoting Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006)). When

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evaluating a motion for summary judgment, the court views all facts and draws all inferences in

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the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore,

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Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). Furthermore, the courts construe pro se inmate motions

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and pleadings liberally and “should avoid applying summary judgment rules strictly.” Thomas, 611

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F.3d at 1150.

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The moving party bears the burden of showing that there are no genuine issues of

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material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order to carry

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its burden of production, the moving party must either produce evidence negating an essential

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element of the nonmoving party’s claim or defense or show that the nonmoving party does not

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have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.”

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Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the

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moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion to

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“set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256.

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The nonmoving party “may not rely on denials in the pleadings but must produce specific

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evidence, through affidavits or admissible discovery material, to show that the dispute exists,”

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Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply

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show that there is some metaphysical doubt as to the material facts.” Bank of America v. Orr, 285

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F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere existence of a scintilla of

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evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252.

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B.

Motion to Dismiss Legal Standard

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short

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and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(2). A complaint must contain either direct or inferential allegations concerning “all the

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material elements necessary to sustain recovery under some viable legal theory.” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 5444, 562 (2007) (quoting Car Carriers, Inc. v. Ford Motor Co., 745

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F.2d 1101, 1106 (7th Cir. 1989) (emphasis in original)). “Factual allegations must be enough to

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rise above the speculative level.” Id. at 555. Tto survive a motion to dismiss, a complaint must

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contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v.

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Iqbal, 129 S. Ct. 1937, 1949 (2009) (citation omitted). Pro se plaintiffs, however, are subject to

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“less stringent standards than formal pleadings drafted by lawyers,” and the court should liberally

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construe their complaints. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted).
In Iqbal, the Supreme Court recently clarified the two-step approach district courts

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are to apply when considering motions to dismiss. First, a district court must accept as true all

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well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the

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assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only

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by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider

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whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A

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claim is facially plausible when the plaintiff’s complaint alleges facts that allow the court to draw

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a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where

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the complaint does not permit the court to infer more than the mere possibility of misconduct, the

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complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal

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quotation marks omitted). If the claims in a complaint have not crossed the line from conceivable

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to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570. When

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considering a 12(b)(6) motion to dismiss, the court should treat the motion as a Rule 56 motion for

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summary judgment if “matters outside the pleadings are presented to and not excluded by the

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court.” Fed. R. Civ. P. 12(d).

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C.

Analysis
Because Defendants’ motion is based on sources outside the pleadings, the Court

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will analyze Plaintiff’s First Amendment access to the courts claim under the summary judgment

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standard. Fed. R. Civ. P. 12(d). However, the Court finds the record insufficiently developed to

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analyze Plaintiff’s First Amendment retaliation claim under the summary judgment standard. The

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Court will therefore consider the First Amendment retaliation claim under the motion to dismiss

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standard.

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A prisoner’s constitutional right of access to the courts includes the right to prepare

First Amendment Access to the Courts

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and file legal documents. Lewis v. Casey, 518 U.S. 343, 350–51 (1996). To establish a violation

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of the right of access to the courts, a prisoner must establish that he or she has suffered an actual

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injury. See Lewis, 518 U.S. at 349. An actual injury is “actual prejudice with respect to

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contemplated or existing litigation, such as the inability to meet a filing deadline or to present a

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claim.” Id. at 348 (citation and internal quotations omitted).

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The Court grants Defendants’ motion for summary judgment because Plaintiff has

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not produced sufficient evidence showing he suffered an actual injury. Plaintiff claims Defendant

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Pharris violated his right of access to the courts by refusing to pick up his legal mail for ten days,

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thereby delaying the filing of his already overdue motions. However, the record shows Plaintiff’s

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motions were indeed filed, albeit late, and the judge who considered them, the Honorable Peggy A.

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Leen, denied those motions on their merits not because they were untimely. Therefore, Defendant

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Pharris’ refusal to pick up Plaintiff’s legal mail did not affect the disposition of those motions. As

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such, Plaintiff has failed to present evidence demonstrating that he suffered an actual injury from

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her conduct. Accordingly, the Court grants Defendants’ motion for summary judgment as to

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Plaintiff’s First Amendment access to the courts claim.

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2.

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A prisoner must demonstrate five elements to maintain a viable claim for First

First Amendment Retaliation

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Amendment retaliation: “(1) An assertion that a state actor took some adverse action against an

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inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the

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inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). To

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determine whether plaintiff’s exercise was chilled, the court must analyze the evidence provided

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and inquire whether the official’s acts would chill or silence a person of ordinary firmness in the

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plaintiff’s position from engaging in future First Amendment activities. Mendocino Envtl. Ctr. v.

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Mendocino County, 192 F.3d 1283, 1300 (9th Cir. 1999) (citing Crawford-El v. Britton, 93 F.3d

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813 (D.C. Cir. 1996), overruled on other grounds by 523 U.S. 574 (1998)). Plaintiff alleges

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Defendant Pharris yelled at him in an intimidating voice, threatened to ban him from the law

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library, refused him reentry to the law library, and filed false disciplinary charges against him in

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retaliation for filing a grievance against Defendant Pharris and a lawsuit against the law library

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(the “Protected Conduct”). However, Plaintiff fails to allege facts sufficient to support at least two

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of the required elements.

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a.

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Because of

With respect to the second element, Plaintiff has not demonstrated a causal

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relationship between his Protected Conduct and Defendant Pharris’ alleged actions in the library.

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Plaintiff’s allegations could conceivably show Defendant Pharris’ actions were related to his

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Protected Conduct, but those allegations do not cross the line from conceivable to plausible.

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Indeed, Defendant Pharris’ actions could have been the result of any number of circumstances. For

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example, Pharris could have been reacting to prisoner misbehavior in the library or she simply

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could have been in a bad mood that day. Also, the environment of a prison is such that yelling,

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threatening, and filing grievances are not out of the ordinary. In sum, Plaintiff’s allegations do not

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permit the Court to infer more than the mere possibility that Defendant acted “because of”

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Plaintiff’s Protected Conduct.

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b.

Chilled the Exercise of Inmate’s First Amendment Rights

With respect to the fourth element, the Court finds the complaint inadequately

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vague as to how Defendant’s yelling, threats, false disciplinary charges, or refusing reentry to the

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library chilled the exercise of his First Amendment activities. First, as previously stated, such

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conduct is not out of the ordinary in a prison environment. A person of ordinary firmness in

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Plaintiff’s position therefore would not be chilled by Defendants’ behavior. Second, although

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Plaintiff claims the Defendant excluded him from the library, Plaintiff offers no specific facts such

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as the duration, timing, and scope of his ban from the library. Therefore, because Plaintiff offers

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only conclusory allegations of retaliation, the Court finds Plaintiff has not alleged a plausible claim

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for relief. The Court accordingly grants Defendant’s motion to dismiss Plaintiff’s First

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Amendment retaliation claim. As Plaintiff fails to demonstrate two of the required elements, the

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Court need not analyze the remaining three elements.

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II.

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Plaintiff’s Motion to Dismiss Defendant Neven
Because the Court has granted Defendants’ motion and disposed of Plaintiff’s two

remaining claims, the Court dismisses Plaintiff’s motion to dismiss as moot.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss/Motion for

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Summary Judgment (#23) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Dismiss Defendant Neven
(#31) is DENIED as moot.

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The Clerk of Court is instructed to close the case.

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Dated: June 27, 2011

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____________________________________
ROGER L. HUNT
United States District Judge

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