Leavitt v. Wickham et al

Filing 52

ORDER Denying 49 Motion for Leave to File Sur-Reply. Granting 39 Motion for Summary Judgment. Signed by Chief Judge Gloria M. Navarro on 2/3/2015. (Copies have been distributed pursuant to the NEF - SLR)

UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CODY LEAVITT,

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Plaintiff,
vs.

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HAROLD WICKHAM, et al.,

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Defendants.

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Case No.: 2:13-cv-00490-GMN-CWH
ORDER

Pending before the Court is a Motion for Summary Judgment (ECF No. 39) filed by

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Defendants Harold Wickham, Linda Adams, Isidro Baca, Greg Cox, Frank Dreesen, Jerry

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Howell, Doni Jennings, E.K. McDaniel, and Jennifer Nash (collectively, “Defendants”).

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Additionally before the Court is a Motion for Leave to File Sur-Reply (ECF No. 49) filed by

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Plaintiff Cody Leavitt (“Plaintiff”). Both motions are fully briefed. For the reasons discussed

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below, the Court DENIES Plaintiff’s Motion for Leave to File Sur-Reply and GRANTS

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Defendants’ Motion for Summary Judgment.

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I.

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BACKGROUND
This case arises out of alleged Fourth and Fourteenth Amendment violations resulting

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from a prisoner’s unconsented blood draw. (Compl. at 1, ECF No. 1-1). Plaintiff Cody Leavitt

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(“Plaintiff”) is an inmate incarcerated in the Nevada Department of Corrections (“NDOC”).

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(Am. Compl. at 1, ECF No. 9). Although presently housed at Lovelock Correctional Center

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(Not. of Change of Address at 1, ECF No. 31), the incidents at issue occurred while Plaintiff

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was housed at High Desert State Prison (“HDSP”) (Am. Compl. at 10). On April 15, 2012, an

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inmate request form (“kite”) was anonymously submitted to HDSP corrections officers,

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alleging that Plaintiff was continuously sexually assaulted by Plaintiff’s cellmate. (Ex. A to

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Defs.’ Mot. for Summ. J., ECF No. 39-1). HDSP officers followed institutional procedures

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pursuant to a potential Prison Rape Elimination Act violation (Ex. B to Defs.’ Mot. for Summ.

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J., ECF No. 39-2) and, upon submission of the kite, escorted Plaintiff to the infirmary (Ex. C to

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Defs.’ Mot. for Summ. J., ECF No. 39-3).

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After HDSP personnel conducted an interview and examination, Plaintiff denied the

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kite’s allegations and refused to go to the hospital. (Am. Compl. at 8, 10; Ex. B to Defs.’ Mot.

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for Summ. J.). The HDSP doctor nevertheless required the mandatory blood draws at six

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weeks, twelve weeks, and six months after an alleged sexual assault. (Ex. F to Defs.’ Mot. for

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Summ. J., ECF No. 39-6). Accordingly, Plaintiff was unwillingly subjected to blood draws on

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April 16, 2012, July 9, 2012, and October 16, 2012. (Am. Compl. at 10). Plaintiff contends that

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the October 16, 2012 blood draw was the most excessive form of the HDSP’s “Mengele-esque

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hemolarceny,” as Plaintiff was fasting in accordance to his religious practices and was

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unwillingly subjected to the blood draw regardless. (Id.).

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Plaintiff filed his Complaint on March 21, 2013, against numerous employees at HDSP,

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mainly alleging Fourth, Eighth, and Fourteenth Amendment, and Article I, Section 18 of the

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Nevada Constitution violations. (Compl. at 1). Plaintiff filed his Amended Complaint on April

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30, 2013. (Am. Compl. at 1). Pursuant to a Screening Order, the Court dismissed all of

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Plaintiff’s claims except for the Fourth Amendment unlawful search and seizure violation, the

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Nevada Constitution violation, and the Fourteenth Amendment procedural due process

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violation. (ECF No. 28). Subsequently, Defendants filed the instant Motion for Summary

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Judgment, stating that HDSP’s personnel were necessarily acting within their duties in

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mandating the blood draws and that the actions taken were lawful. (Defs.’ Mot. for Summ. J.

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5:25–6:4). Specifically, “NDOC employees were required to follow protocol,” and “Plaintiff

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was not arbitrarily subjected to a blood draw and only the amount necessary to perform the test

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was drawn.” (Id.).

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On July 3, 2014, Plaintiff filed a Motion for Leave to File Sur-Reply, alleging that

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Exhibit A to Defendant’s Motion for Summary Judgment is “missing nearly a dozen other

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attachments that Mr. Leavitt affixed thereto.” (Mot. for Leave to File Sur-Reply 1:19–20, ECF

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No. 49). Defendants filed a Response. (ECF No. 50).

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II.

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LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when the

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pleadings, depositions, answers to interrogatories, and admissions on file, together with the

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affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Material facts are those that

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may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable

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jury to return a verdict for the nonmoving party. See id. “Summary judgment is inappropriate if

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reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict

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in the nonmoving party’s favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th

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Cir. 2008) (citing United States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A

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principal purpose of summary judgment is “to isolate and dispose of factually unsupported

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

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

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

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forward with evidence which would entitle it to a directed verdict if the evidence went

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uncontroverted at trial. In such a case, the moving party has the initial burden of establishing

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the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp.

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Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In

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

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

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essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving

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party failed to make a showing sufficient to establish an element essential to that party’s case

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on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–

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24. If the moving party fails to meet its initial burden, summary judgment must be denied and

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the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co.,

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398 U.S. 144, 159–60 (1970).
If the moving party satisfies its initial burden, the burden then shifts to the opposing

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

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Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute,

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the opposing party need not establish a material issue of fact conclusively in its favor. It is

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sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the

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parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

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Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). In other words, the nonmoving party cannot avoid

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summary judgment by relying solely on conclusory allegations that are unsupported by factual

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data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go

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beyond the assertions and allegations of the pleadings and set forth specific facts by producing

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competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324.

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

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truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.

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The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn

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

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

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III.

DISCUSSION

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A.

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Local Rule 7–2(a)(c) allows a for motion, a response, and a reply. No provision exists

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Motion for Leave to File Sur-Reply

for filing a sur-reply. Thus, a party must obtain leave from the Court before filing a sur-reply.

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“A sur-reply may only be filed by leave of court, and only to address new matters raised in a

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reply to which a party would otherwise be unable to respond.” Kanvick v. City of Reno, No.

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3:06–CV–00058, 2008 WL 873085, at *1, n. 1 (D. Nev. March 27, 2008). Further, sur-replies

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“are highly disfavored, as they usually are a strategic effort by the nonmovant to have the last

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word on a matter.” Lacher v. W., 147 F.Supp.2d 538, 539 (N.D. Tex.2001).

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Here, Plaintiff’s Motion for Leave to File Sur-Reply does not assert that Defendants

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raised any new issues in their Reply. Alternatively, the Court finds that the issues raised in

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Plaintiff’s Motion would not affect the Court’s decision on Defendant’s Motion for Summary

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Judgment. More specifically, Plaintiff asserts that Defendant’s Exhibit A, the original

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grievance or kite, is missing “nearly a dozen other attachments that [Plaintiff] affixed thereto,”

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preventing him from appropriately responding to Defendants’ Motion for Summary Judgment

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(Mot. for Leave to File Sur-Reply, ECF No. 49). However, Plaintiff fails to adequately

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describe what is absent from the grievance and how the missing attachments would allow

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Plaintiff to more effectively respond to Defendants’ Motion. Therefore, the Court denies

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Plaintiff’s Motion for Leave to File Sur-Reply.

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B.

Motion for Summary Judgment

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Defendants assert that Plaintiff’s Fourth and Fourteenth Amendment were not violated

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because HDSP met both elements of the Walker test and “no due process rights were implicated

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and Plaintiff’s Fourteenth Amendment claim fails as a matter of law.” (Defs.’ Mot. for Summ.

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J. 5:25, 7:7–8). On the other hand, Plaintiff asserts Defendants are “putting the proverbial cart

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before the horse,” alleging that HDSP did not properly follow procedures and did not

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adequately carry out the “extensive list of requirements” normally occurring in a sexual assault

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case. (Pl.’s Resp. 1:17–21).

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Fourth Amendment1

Prisoners, despite their status, are not forced to forfeit all constitutional rights at the

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prison gate. See Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990). “Prison walls do not

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form a barrier separating prison inmates from the Constitution…Nevertheless, prisoners’

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constitutional rights are subject to substantial limitations and restrictions in order to allow

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prison officials to achieve legitimate correctional goals and maintain institutional security.” Id.

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(quoting Turner v. Safley, 482 U.S. 78, 84 (1987)). Extracting blood from a person without

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consent or a warrant ordinarily constitutes a search within the meaning of the Fourth

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Amendment. See Hamilton v. Brown, 630 F.3d 889, 894 (9th Cir. 2011). Although blood

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draws are inherently intrusive, the Supreme Court has held that the intrusion is “not significant,

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since such ‘tests are a commonplace in these days of periodic physical examinations and

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experience with them teaches that the quantity of blood extracted is minimal, and that for most

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people, the procedure involves virtually no risk, trauma, or pain.” Skinner v. Ry. Labor

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Executives' Ass'n, 489 U.S. 602, 625 (1989) (quoting Schmerber v. California, 384 U.S. 757,

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772 (1966)).
Because the “touchstone of the Fourth Amendment is reasonableness,” warrantless

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blood draws do not violate Fourth Amendment rights as long as the draw is reasonable. U.S. v.

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Kriesel, 508 F.3d 941, 947 (9th Cir. 2007). Reasonableness is determined by assessing “the

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degree to which it intrudes upon an individual’s privacy and…the degree to which it is needed

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for the promotion of legitimate governmental interests.” Id. Further, reasonableness includes

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whether the blood drawing procedure utilized accepted medical practices. See Ove v. Gwinn,

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264 F.3d 817, 824 (9th Cir. 2001). However, when measuring Fourth Amendment

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reasonableness in regards to prisoners and prison regulations, those regulations that allegedly

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Plaintiff’s claim under Article I, Section 18 of the Nevada Constitution is analogous to the Fourth Amendment
claim. Therefore, the Fourth Amendment analysis correspondingly applies to Plaintiff’s Nevada Constitution
violation.
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“infringe constitutional rights are judged under a ‘reasonableness' test less restrictive than that

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ordinarily applied to alleged infringements of fundamental constitutional rights.” O'Lone v. Est.

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of Shabazz, 482 U.S. 342, 349 (1987). Furthermore, “when a prison regulation impinges on

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inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate

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penological interests.” Turner, 482 U.S. at 89.

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Therefore, to prove a blood draw is a reasonable Fourth Amendment search, the prison

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must establish: “(1) what the purpose of the blood testing was, and (2) to show that the results

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were going to be used to further a legitimate penological end.” Walker, 917 F.2d at 388.

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Further, the prison must show that the policies are motivated by specific penological interests

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and demonstrate that the “interests are the bases for their policies and that the policies are

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reasonably related to the furtherance of the identified interests.” Id. at 386. The Ninth Circuit

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found a legitimate penological interest in “diagnosing severe medical problems to prevent

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transmission of serious disease among the general jail population” and that this interest is

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sufficient to preclude a blood draw as an unreasonable search within the Fourth Amendment.

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See Jones v. Hennessy, 981 F.2d 1258, 1 (9th Cir. 1992); see also Florence v. Bd. of Chosen

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Freeholders of County of Burlington, 132 S. Ct. 1510, 1528 (2012) (Alito, J., concurring)

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(finding that preventing the spread of disease in prisons is a legitimate penological interest).

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In Walker, a Nevada prisoner brought an action against NDOC when prison guards

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forced him to submit to a blood draw due to the prison’s AIDS testing program. Id. at 383. The

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prison argued that the program furthered a penological interest as bearing a “logical connection

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to the health, safety and welfare of all the inmates” and in “the best interests of public health

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generally. AIDS testing is clearly a legitimate governmental interest and a valid penological

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objective.” Id. at 387. However, the Ninth Circuit deemed “such conclusory assertions” as

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“wholly insufficient” to sustain the district court’s grant of summary judgment. Id. The court

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held that the prison did not proffer any evidence supporting the nexus between the regulations

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and the asserted penological interest. Id. at 388. Therefore, because the prison did not

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sufficiently establish what the purpose of the blood testing was, nor show that the results were

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used to further a legitimate penological end, the Ninth Circuit held the summary judgment grant

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inappropriate. Id.

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Here, HDSP offers sufficient evidence to satisfy both parts of the Walker test. HDSP’s

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policy establishes that the purpose of blood draws in response to allegations of sexual assault

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among inmates is to effectively test for sexually transmitted diseases, such as AIDS. (Exs. C,

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F–G to Defs.’ Mot. for Summ. J., ECF Nos. 39-3, 39-6, 39-7). Further, Plaintiff was aware of

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the sexual assault policy. (Resp. 1:20–25, ECF No. 45). Although Plaintiff claims that no

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assault occurred, it is within the prison’s duty to provide testing regardless. (Exs. F–G to Defs.’

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Mot. for Summ. J.).

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In regards to the second Walker prong, HDSP is furthering a legitimate penological

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interest by preventing the spread of disease among inmates. Unlike in Walker, where the prison

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failed to produce evidence of the asserted penological interest, HDSP and Defendants have

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offered multiple exhibits delineating HDSP’s motivations and procedures of the blood draw.

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(Exs. F–G, I–J to Defs.’ Mot. for Summ. J.). For example, Exhibit F to Defendants’ Motion for

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Summary Judgment is HDSP’s Medical Directive 216, which mandates laboratory testing in

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“[i]ncidents involving possible exchange of bodily fluids.” (Ex. F to Defs.’ Mot. for Summ. J.

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at 4). Moreover, Exhibit G is HDSP’s Medical Directive 224, which provides guidelines for

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the methods and treatment of inmates for evaluation of a possible sexually transmitted disease

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(Ex. G to Defs.’ Mot. for Summ. J. at 2-3), and Exhibit I is HDSP’s Medical Directive 117,

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which enumerates the procedure for treating sexually transmitted diseases. (Ex. I to Defs.’ Mot.

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for Summ. J. at 2-3). Finally, Defendants provide the declaration of Sharon Clinkscales, the

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Health Information Director for NDOC, who explains the purpose behind the mandatory

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treatment: “to prevent the potential or actual spread of sexually transmitted diseases and to

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protect the health and safety of the inmates and staff.” (Ex. J to Defs.’ Mot. for Summ. J. ¶¶ 1,

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6). These procedures exemplify the recognized penological interest of protecting other

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prisoners’ safety and health, thus precluding the blood draw as an unreasonable Fourth

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Amendment search. (Exs. G, J to Defs.’ Mot. for Summ. J.).
Plaintiff offers no evidence to raise a genuine issue of material fact regarding either

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prong of the Walker test. Therefore, the Court finds that the unconsented blood draws were

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reasonable Fourth Amendment searches as a matter of law and grants Defendants’ Motion for

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Summary Judgment on Plaintiff’s Fourth Amendment claim.2
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Due Process

Plaintiff asserts a Fourteenth Amendment procedural due process violation as a result of

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HDSP’s failure to exhaust procedural investigations of the alleged sexual assault. (Compl. at 9).

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The Supreme Court has held “the extraction of blood from an individual in a simple, medically

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acceptable manner, despite the individual’s lack of an opportunity to object to the procedure,

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does not implicate the Due Process Clause.” Schmerber v. California, 384 U.S. 757, 759–60

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(1966). Further, “the Ninth Circuit explicitly has rejected the argument that prison officials are

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required to provide a hearing before requiring an inmate to provide a blood sample for DNA

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analysis.” Hamilton v. Brown, 630 F.3d 889, 896-97 (9th Cir. 2011). Accordingly, Plaintiff’s

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Fourteenth Amendment claim fails as a matter of law.

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IV.

IT IS HEREBY ORDERED that the Motion for Leave to File Sur-Reply (ECF No. 49)

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filed by Plaintiff is DENIED.
IT IS FURTHER ORDERED that the Motion for Summary Judgment (ECF No. 39)

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CONCLUSION

filed by Defendants is GRANTED.

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Defendants also raise the defenses of Qualified Immunity (Defs.’ Mot. for Summ. J. 8:6) and Official Capacity
(Id. at 7:24). However, because the Court finds no violation of a constitutional right, the Court need not address
these issues.
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The Clerk of the Court shall enter judgment accordingly, and close the case.

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DATED this 3rd day of February, 2015.

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___________________________________
Gloria M. Navarro, Chief Judge
United States District Judge

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