Johnson v. Adams et al

Filing 76

ORDER granting 65 Motion for Summary Judgment and Denying as moot 69 Motion for Leave to Motion. Signed by Judge James C. Mahan on 1/27/2021. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:18-cv-00134-JCM-VCF Document 76 Filed 01/27/21 Page 1 of 7

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

3 Francis Johnson,
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Case No. 2:18-cv-00134-JCM-VCF

Plaintiff
Order

5 v.
6 Minor Adams et al.,
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Defendants

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Presently before the court is defendants John Borrowman, Jo Gentry, and Minor Adams’s

10 motion for summary judgment. (ECF Nos. 65, 66). Plaintiff Francis Johnson responded, (ECF
11 No. 70), to which, defendants replied, (ECF No. 71).
Also before this court is plaintiff’s motion for leave to file motion for summary

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judgment. (ECF No. 69).
I.

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Background
Plaintiff alleges that prison staff retaliated against him for his grievances and lawsuit

15 during his period of incarceration. (ECF Nos. 5, 6). Upon screening plaintiff’s amended
16 complaint, this court allowed a single count—retaliation in violation of the First Amendment—to
17 proceed against defendants Minor Adams, Jo Gentry, John Borrowman, Mike Byrne, and Does
1-5. (ECF No. 6). Defendants were all employed by the Nevada Department of Corrections
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(“NDOC”) to work at the Southern Desert Correctional Facility (“SDCC”). (ECF No. 66).
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Plaintiff alleges that his personal property was confiscated in retaliation fpr his
20 grievances and lawsuit, Johnson v. Nevada, No. 2:14-CV-1425-GMN-PAL, 2017 WL 111920
21 (D. Nev. Jan. 10, 2017). (ECF No. 65). The instant case relies on three grievances regarding
22 plaintiff’s missing property: Grievance 2006-30-11016 (“Grievance 11016”), Grievance 200630-13493 (“Grievance 13493”), and Grievance 2006-30-20717 (“Grievance 20717”). (ECF No.
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66).

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Plaintiff filed his first grievance—Grievance 11016—on November 2, 2015. (Id.). He

2 stated that he did not receive his “TV, CD player, headphones, fan, lamp, and surge protector”
3 when he was transferred to High Desert State Prison from SDCC. (Id.). Defendant Adams
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denied plaintiff’s grievance upon reviewing Johnson’s property inventory from September 2015
and speaking with non-party SDCC property senior officer Roberson. (Id.). There was no
indication that plaintiff was in possession of such items. (Id.). Plaintiff appealed this decision.

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It was denied on first-level review by non-party B. Williams on March 23, 2016, with reference

7 to a settlement, and second-level review by defendant Borrowman on February 21, 2017. (Id.).
Plaintiff’s second grievance—Grievance 13493—was filed on December 3, 2015. (ECF

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No. 66). This grievance was duplicative of Grievance 11016 in violation of administrative
regulation 740. (Id.). However, defendant Adams denied this grievance upon reviewing the
issue again.

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Plaintiff’s third and final grievance—Grievance 20717—was filed on March 5, 2016.

12 (Id.). This grievance related to a “missing Zenith TV, Sony CD player, (1) legal binder with (6)
13 folders of legal work in it, (2) bars of soap, (2) aim toothpastes, (2) bags of Maxwell coffee, (26)
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soups, (4) pairs of new socks, (1) bag of cheese crunchys, [and] (3) popcorns.” (Id.). Defendant
Adams denied the grievance, because Johnson failed to prove he had ownership of the items
allegedly missing. (Id.).

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Plaintiff initiated his appeal several times due to procedural deficiencies. Plaintiff was

17 informed how to cure such deficiencies in response. Ultimately, defendant Gentry denied the
18 first-level appeal, citing plaintiff’s prior admission of guilt to possessing another inmate’s
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television. (Id.). On plaintiff’s second-level appeal, defendant Borrowman upheld the prior
decisions upon “conduct[ing] extensive research into [plaintiff’s] claims.” (Id.).

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Records reflect that plaintiff received his “TV and CD player . . . on December 9, 2015”,
“surge protector on September 28, 2015”, and “headphones as a settlement on April 22, 2014”.

22 (Id.).
23 . . .

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Case 2:18-cv-00134-JCM-VCF Document 76 Filed 01/27/21 Page 3 of 7

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II.

Legal Standard
The Federal Rules of Civil Procedure allow summary judgment when the pleadings,

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

8 of the nonmoving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). However, to
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withstand 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. “When the
party moving for summary judgment would bear the burden of proof at trial, it must come

12 forward with evidence which would entitle it to a directed verdict if the evidence went
13 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing the
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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,

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

17 essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving
18 party failed to make a showing sufficient to establish an element essential to that party’s case on
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which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If
the moving party fails to meet its initial burden, summary judgment must be denied and the court

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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

23 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). The opposing party need not establish a dispute of
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material fact conclusively in its favor. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,

2 809 F.2d 626, 631 (9th Cir. 1987). It is sufficient that “the claimed factual dispute be shown to
3 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Id.
In other words, the nonmoving party cannot avoid summary judgment by relying solely

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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

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allegations of the pleadings and set forth specific facts by producing competent evidence that

7 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

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truth, but to determine whether a genuine dispute exists 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

12 granted. See id. at 249–50.
The Ninth Circuit has held that information contained in an inadmissible form may still

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be considered for summary judgment if the information itself would be admissible at trial.
Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citing Block v. City of Los Angeles, 253
F.3d 410, 418–19 (9th Cir. 2001) (“To survive summary judgment, a party does not necessarily
have to produce evidence in a form that would be admissible at trial, as long as the party satisfies

17 the requirements of Federal Rules of Civil Procedure 56.”)).
18 III.
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Discussion
Defendants argue that they should prevail on summary judgment, because plaintiff has

not satisfied exhaustion. (ECF No. 65). This court agrees.
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The Prison Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C. § 1997e, provides that
“[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any

22 other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until
23 such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The

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“exhaustion requirement applies to all prisoners seeking redress for prison circumstances or

2 occurrences.” Porter v. Nussle, 534 U.S. 516, 520 (2002).
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Thus, inmates are required to properly exhaust their claims. See Woodford v. Ngo, 548
U.S. 81, 90 (2006). This means that an inmate must “use all steps the prison holds out, enabling
the prison to reach the merits of the issues.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir.
2009) (citing id.). Proper exhaustion also “demands compliance with an agency’s deadlines and
other critical procedural rules.” Woodford, 548 U.S. at 90–91. Applicable procedural rules for

7 proper exhaustion “are defined not by the PLRA, but by the prison grievance process itself.”
8 Jones v. Bock, 549 U.S. 199, 218 (2007). Failure to exhaust is an affirmative defense, and a
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defendant must plead and prove that a prisoner has failed to exhaust his administrative remedies.
Albino v. Baca, 747 F.3d 1162, 1169–70 (9th Cir. 2014).
Here, defendants have satisfied their burden. (ECF Nos. 65, 66). Plaintiff has failed to

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present any genuine issues of material fact as to exhaustion. (ECF No. 70).
Upon review of the record, this court finds that plaintiff failed to exhaust his allegations

13 related to Grievances 13493 and 20717. Plaintiff failed to follow NDOC grievance procedures
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as laid out in administrative regulation 740 (“AR 740”). (ECF No. 66). Even after he was
advised and permitted to correct his mistake, plaintiff failed to attach all supporting documents to
Grievance 20717 or proceed appropriately within NDOC’s regulations. (Id.). As for Grievance
13493, plaintiff did not appeal the denial of his claims. (Id.).
Defendants concede that Grievance 11016 was exhausted; however, they argue that it is

18 not operative grievance in this matter. (ECF No. 65). This court agrees. Grievance 11016
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alleges property taken as the result of a September 2015 inventory. (ECF No. 66). The operative
complaint in the instant case relates more to property taken in March 2016. (ECF No. 5, 6). In

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response, plaintiff has failed to provide any factual predicate for this court to believe that the
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instant case relates to Grievance 11016 as opposed to plaintiff’s non-exhausted grievances.

22 (ECF No. 70). Prison inmates must give a reviewing agency “a full opportunity to investigate
23 the complaint and to develop an understanding of the facts underlying it.” Brown v. Valoff, 422
F.3d 926, 943 (9th Cir. 2005).
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The record reveals that plaintiff was given sufficient reason for each of his grievance

2 denials, and the facility informed him of methods to correct mistakes whenever issues arose.
3 (ECF No. 66). There is no indication that defendants attempted to thwart plaintiff’s ability to
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exhaust his administrative remedies. The facility engaged in good faith settlement with plaintiff
where he received several items in return. (Id.). This court finds no indication that defendants
attempted to stymy plaintiff’s ability to exhaust his remedies.

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Accordingly, defendants’ motion for summary judgment is granted. (ECF No. 65). As to

7 the remaining defendant in this case, Mike Byrne, plaintiff has failed to serve him. (ECF No.
8 73). Federal Rule of Civil Procedure 4(m) provides as follows:
If a defendant is not served within 90 days after the complaint is
filed, the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice against that
defendant or order that service be made within a specified time.
But if the plaintiff shows good cause for the failure, the court must
extend the time for service for an appropriate period. This
subdivision (m) does not apply to service in a foreign country
under Rule 4(f), 4(h)(2), or 4(j)(1), or to service of a notice under
Rule 71.1(d)(3)(A).

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13 Fed. R. Civ. P. 4(m). More than 90 days have elapsed since the instant action was filed. To
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date, plaintiff has not served defendant Byrne. On September 28, 2020, the court gave plaintiff
notice of its intent to dismiss her claims pursuant to Fed. R. Civ. P. 4(m). (ECF No. 73). Thus,
defendant Byrne is hereby dismissed from this action. See Fed. R. Civ. P. 4(m).

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Having now found that summary judgment is appropriate due to failure to appropriately

17 exhaust, this court denies plaintiff’s motion for leave to file motion for summary judgment as
18 moot. (ECF No. 69).
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IV.

Conclusion
Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that defendants John
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Borrowman, Jo Gentry, and Minor Adams’s motion for summary judgment (ECF No. 65) be,

22 and the same hereby is, GRANTED.
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IT IS FURTHER ORDERED that defendants’ motion for leave to file motion for
summary judgment (ECF No. 69) be, and the same hereby is, DENIED as moot.
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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s claim against

2 defendant Mike Byrne be, and the same hereby are, DISMISSED.
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The clerk is ordered to enter judgment and close the case accordingly.
DATED January 27, 2021.

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UNITED STATES DISTRICT JUDGE

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