Downing v. Graves et al

Filing 65

ORDER Granting 43 Defendants' Motion for Summary Judgment. The defendants are instructed to filed a proposed judgement within seven (7) days of the issuance of this order. Signed by Judge James C. Mahan on 6/6/2014. (Copies have been distributed pursuant to the NEF - EDS)

1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
10
DISTRICT OF NEVADA
11
12
CURTIS L. DOWNING,
13
Plaintiff,
14
vs.
15
JOHNNIE GRAVES, et al.,
16
Defendants.
17
18

)
)
)
)
)
)
)
)
)
/

2:12-cv-00332-JCM-CWH
ORDER

Presently before the court is defendants’ motion to dismiss or, in the alternative, summary

19

judgment. (Doc. # 43). The plaintiff responded (doc. # 58) and the defendants replied (doc. # 61).

20

I.

Background

21

Curtis Downing (hereinafter “plaintiff”) a pro se litigant in the custody of the Nevada

22

Department of Corrections (“NDOC”) filed this action pursuant to 42 U.S.C. § 1983. (Doc. #9 and #10).

23

The events that gave rise to this action took place while plaintiff was housed at Southern Desert

24

Correctional Center (“SDCC”) from March 2010 to December 2012. Id.

25

On January 31, 2013, the court screened his complaint pursuant to 28 U.S.C. § 1915A(a). (Doc.

26

# 8). The court recognized eleven counts against thirteen individual defendants; one claim was dismissed

1

with prejudice and six defendants were dismissed from suit and/or not accused of any claims which

2

survived the court’s screening. Id.

3

The following eleven claims remain:

4

Count three (3): First Amendment retaliation claim against defendants Williams and Cox for

5

allegedly denying the plaintiff’s appeal of a disciplinary finding of guilt for charging other inmates legal

6

fees for assisting with their legal pursuits.

7
8

Count four (4): First Amendment retaliation claim against defendant Wilson for allegedly
initiating a false notice of charging for charging legal fees.

9

Count six (6): (a) First Amendment retaliation claim against defendants Howell and Williams

10

for allegedly moving plaintiff to different housing and then to a different prison for filing grievance

11

claims about housing conditions; and (b) a conspiracy claim against defendant Cox for refusing to

12

reverse the aforementioned allegedly retaliatory actions.

13

Count seven (7): (a) First Amendment retaliation claim against defendant Williams for allegedly

14

recommending false charges be brought against plaintiff for abuse of grievance procedures in retaliation

15

for filing grievances; and (b) a conspiracy claim against defendant Foster for issuing a false notice of

16

charges based on those recommendations.

17

Count eight (8): First Amendment retaliation claim against defendant Romero for allegedly

18

ransacking the plaintiff’s cell and issuing a false notice of charges against plaintiff for theft, in retaliation

19

for filing grievances.

20

Count eleven (11): failure to train claim against Cox for allegedly failing to train officers under

21

his control in proper use of the Nevada Department of Corrections disciplinary and grievance

22

procedures.

23

Supplemental count: First Amendment retaliation claim against Meranza for allegedly

24

conducting a search of the plaintiff’s cell and confiscating his property in retaliation for helping other

25

inmates in their legal pursuits.

26

2

1

II.

Legal Standard

2

A.

3

A court may dismiss a plaintiff's complaint for “failure to state a claim upon which relief can be

4

granted.” FED. R. CIV. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain

5

statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell

6

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual

7

allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements

8

of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted). “Factual

9

allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to

10

survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a claim to relief

11

that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted).

Motion to Dismiss

12

In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when

13

considering motions to dismiss. First, the court must accept as true all well-pled factual allegations in

14

the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950. Mere

15

recitals of the elements of a cause of action, supported only by conclusory statements, do not suffice. Id.

16

at 1949. Second, the court must consider whether the factual allegations in the complaint allege a

17

plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff's complaint alleges

18

facts that allows the court to draw a reasonable inference that the defendant is liable for the alleged

19

misconduct. Id. at 1949.

20

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

21

misconduct, the complaint has “alleged – but not shown – that the pleader is entitled to relief.” Id.

22

(internal quotations omitted). When the allegations in a complaint have not crossed the line from

23

conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

24

B.

25

The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings,

26

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show

Motion for Summary Judgement

3

1

that “there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a

2

matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is “to isolate and

3

dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986).

4

In determining summary judgment, a court applies a burden-shifting analysis. “When the party

5

moving for summary judgment would bear the burden of proof at trial, it must come forward with

6

evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial. In such

7

a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on

8

each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480

9

(9th Cir. 2000) (citations omitted).

10

In contrast, when the nonmoving party bears the burden of proving the claim or defense, the

11

moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element

12

of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to make a

13

showing sufficient to establish an element essential to that party's case on which that party will bear the

14

burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its

15

initial burden, summary judgment must be denied and the court need not consider the nonmoving party's

16

evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

17

If the moving party satisfies its initial burden, the burden then shifts to the opposing party to

18

establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio

19

Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing party need

20

not establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual

21

dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.”

22

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).

23

In other words, the nonmoving party cannot avoid summary judgment by relying solely on

24

conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th

25

Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and

26

set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Celotex

4

1

Corp., 477 U.S. at 324.

2

At summary judgment, a court’s function is not to weigh the evidence and determine the truth,

3

but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S.

4

242, 249 (1986). The evidence of the nonmovant is “to be believed, and all justifiable inferences are

5

to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable

6

or is not significantly probative, summary judgment may be granted. See id. at 249–50.

7

I.

First Amendment Retaliation

8

As an initial matter, the court recognizes that the plaintiff is appearing pro se and must therefore

9

be held to less stringent standards. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro

10

se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less

11

stringent standards than formal pleadings drafted by lawyers.”) (internal quotations and citations

12

omitted). However, “pro se litigants in the ordinary civil case should not be treated more favorably than

13

parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir.1986).

14

In making a claim of First Amendment retaliation a prisoner must satisfy the following five

15

elements: (1) an assertion that a state actor took some adverse action against an inmate; (2) because of;

16

(3) that prisoner's protected conduct and that such action; (4) chilled the inmate's exercise of his First

17

Amendment rights; and (5) the action did not reasonably advance a legitimate correctional goal. Rhodes

18

v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005); See, e.g., Resnick v. Hayes, 213 F.3d 443, 449 (9th

19

Cir.2000); Barnett v. Centoni, 31 F.3d 813, 815–16 (9th Cir. 1994).

20

The plaintiff must provide evidence showing that the actions of the defendant “deterred or chilled

21

[the plaintiff’s] political speech and that such deterrence was a substantial or motivating factor in [the

22

defendant’s] conduct.” Mendocino Env’l Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.

23

1999). This may be demonstrated through “either direct or circumstantial evidence” and does not require

24

that the speech be completely chilled, rather the element only requires a “demonstration that the

25

defendant intended to interfere with [the plaintiff’s] First Amendment rights.” Id. at 1300-01. As stated

26

by the Ninth Circuit, it would be “unjust to allow a defendant to escape liability for a First Amendment
5

1

violation merely because an unusually persistent plaintiff persists in his protected activity.” Id. at 1300.

2

The “proper inquiry asks ‘whether an official’s acts would chill or silence a person of ordinary firmness

3

from future First Amendment activities.” Id.

4

III.

Discussion

5

Although the plaintiff asserts that the defendants took adverse action because of his protected

6

conduct, he fails to demonstrate a genuine issue of fact with regards to whether the alleged actions

7

chilled the exercise of his First Amendment rights. It is clear, based on the inmate grievance history

8

report, (doc. # 43, Ex. C-2), that the plaintiff continued to file multiple grievances and therefore his First

9

Amendment rights were not actually “chilled.” Furthermore, the plaintiff has provided no direct or

10

circumstantial evidence that defendants’ actions were motivated by, or intended to interfere, with his

11

First Amendment rights. Therefore the plaintiff has failed to establish a prima facie case for First

12

Amendment retaliation.

13
The plaintiff cannot simply argue that he disagrees with his record of violations for charging legal
14
fees, abuse of the grievance system as determined by prison officials, and the execution of the prison
15
disciplinary system in order to bring claims against those enforcing it. Prison officials are given
16
necessary deference in the enforcement of regulations to achieve the “penological objectives of the
17
corrections systems.” Shaw v. Murphy, 532 U.S. 223, 229 (2001). In the instant case, this deference and
18
complete lack of evidence to show any retaliatory motive shows that this not an example of a situation
19
where summary judgment should be withheld as “reasonable minds could differ on the material facts.”
20
See Anderson, 477 U.S. at 251.
21
22
23
24
25
26

Moreover, the defendants’ legitimate penological interests in conducting cell searches, deciding
inmate housing assignments, and maintaining grievance filing and appeal procedures, provide the
necessary rationale for the defendants’ conduct. See Shaw, 532 U.S. at 230 (stating that “prison officials
are to remain the primary arbitrators of the problems that arise in prison management”); Turner v. Safley,
482 U.S. 78, 89 (1987) (holding that a prison regulation is valid if it is reasonably related to legitimate

6

1

penological interests).

2

It follows that plaintiff’s conspiracy claims (six and seven) and failure to train claim (eleven) also

3

fail as the evidence demonstrates that the conduct on which the plaintiff bases his allegations were

4

appropriate utilizations of the corrections system’s grievance and disciplinary procedures. The

5

defendants’ motion for summary judgment is therefore granted.

6

Accordingly,

7
8
9
10
11

It is hereby ORDERED, ADJUDGED, and DECREED that defendants’ motion for summary
judgment, (doc. # 43) be, and the same hereby is, GRANTED. The defendants are instructed to filed a
proposed judgement within seven (7) days of the issuance of this order.
Dated June 6, 2014.

12
13
14

UNITED STATES DISTRICT JUDGE

15
16
17
18
19
20
21
22
23
24
25
26

7