Pinder v. Baker et al

Filing 90

ORDER accepting and adopting in part and rejecting in part 80 Report and Recommendation; granting in part and denying in part 66 Motion for Summary Judgment; granting nunc pro tunc 82 Motion to Extend Time; and directing Clerk to grant judgment in favor of Defendants Moore and Baker. Signed by Judge Miranda M. Du on 3/23/16. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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VINCENT PINDER,
Plaintiff,

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Case No. 3:13-cv-00572-MMD-WGC

v.
RENEE BAKER, et al.,

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ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
WILLIAM G. COBB

Defendants.

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I.

SUMMARY

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (dkt. no. 80) (“R&R”) relating to Defendants’ Motion for

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Summary Judgment (dkt. no. 66). Defendants filed a partial objection. (Dkt. no. 81.)

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Plaintiff filed an objection (dkt. no. 83) to which Defendants have responded (dkt. no.

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84), and Plaintiff has replied (dkt. no. 85). Plaintiff has moved for an extension of time to

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file his objection. (Dkt. no. 82.) The Court will grant Plaintiff’s extension request.

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II.

BACKGROUND

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Plaintiff, proceeding pro se, is an inmate in the custody of the Nevada

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Department of Corrections (“NDOC”). Plaintiff asserts claims pursuant to 42 U.S.C. '

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1983 concerning conduct that occurred while he was held at Ely State Prison. After

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screening pursuant to 28 U.S.C. § 1915A, the Court permitted Plaintiff to proceed on his

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four claims: count I for first Amendment retaliation against Mullins; count II for First

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Amendment retaliation against Witter; count III for Eighth Amendment excessive force

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claim; and count IV for First Amendment retaliation against Moore. (Dkt. no. 3.) The

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Court also found that Plaintiff states a colorable supervisory liability claim against Baker.

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(Id. at 8.)

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The R&R recites in details Plaintiff’s allegations and the parties’ respective

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arguments presented in the briefs relating to Defendants’ Motion. (Dkt. no. 80.) The

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Court adopts these discussions from the R&R.

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III.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party

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fails to object, however, the court is not required to conduct “any review at all . . . of any

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issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Indeed, the Ninth Circuit has recognized that a district court is not required to review a

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magistrate judge’s report and recommendation where no objections have been filed.

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See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the

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standard of review employed by the district court when reviewing a report and

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recommendation to which no objections were made); see also Schmidt v. Johnstone,

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263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in

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Reyna-Tapia as adopting the view that district courts are not required to review “any

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issue that is not the subject of an objection.”). Thus, if there is no objection to a

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magistrate judge’s recommendation, then the court may accept the recommendation

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without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 (accepting, without

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review, a magistrate judge’s recommendation to which no objection was filed).

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“The purpose of summary judgment is to avoid unnecessary trials when there is

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no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,
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18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the

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pleadings, the discovery and disclosure materials on file, and any affidavits “show that

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there is no genuine issue as to any material fact and that the moving party is entitled to

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a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An

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issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-

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finder could find for the nonmoving party and a dispute is “material” if it could affect the

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outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986). Where reasonable minds could differ on the material facts at issue,

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however, summary judgment is not appropriate. See id. at 250-51. “The amount of

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evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury

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or judge to resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v.

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Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv.

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Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court

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views all facts and draws all inferences in the light most favorable to the nonmoving

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party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir.

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1986).

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

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of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once

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

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resisting the motion to “set forth specific facts showing that there is a genuine issue for

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trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the

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pleadings but must produce specific evidence, through affidavits or admissible

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discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d

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1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some

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metaphysical doubt as to the material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d

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764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

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U.S. 574, 586 (1986)). “The mere existence of a scintilla of evidence in support of the

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plaintiff’s position will be insufficient.” Anderson, 477 U.S. at 252.
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IV.

DISCUSSION

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As an initial matter, the Court will address the briefs relating to Defendants’

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objection. Local Rule IB 3-2(a) prescribes the procedure for a party to seek review of a

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magistrate judge’s decision involving matters over which the magistrate judge may not

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make a final determination. It authorizes the filing of an objection to the magistrate

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judge’s decision and a response, but it does not provide for the filing of a reply. LR IB 3-

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2(a). Here, Plaintiff filed an objection to the Magistrate Judge’s R&R, as well as a reply

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to Defendants’ response. Because Local Rule IB 3-2(a) does not provide for such, the

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Court will not consider Plaintiff’s reply brief (dkt. no. 85) and orders that Plaintiff’s reply

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be stricken.
Defendants’ Objections

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A.

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The Magistrate Judge recommends denying summary judgment on the First

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Amendment retaliation claim alleged in count II as it relates to the claim that Witter

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withheld mail from Plaintiff’s mother and the Eighth Amendment excessive force claim

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alleged in count III, and on the issue of qualified immunity. (Dkt. no. 80.) Defendants

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object to the recommendations relating to counts II and III, but not on qualified

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immunity. The Court will adopt the recommendation to which Defendants do not object

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and will conduct a de novo review to determine whether to adopt the recommendations

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to which Defendants object. See Thomas, 474 U.S. at 149.

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With respect to count I, the Magistrate Judge found that a genuine issue of

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material fact exists as to whether Witter retaliated against Plaintiff by withholding and

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then disposing of the mail from his mother because Plaintiff had filed several small

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claims action against her. (Id. at 80.) The dispute that the Magistrate Judge found to be

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material involves the reason Witter disposed of the mail from Plaintiff’s mother. (Id.)

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Plaintiff claims that when he received the unauthorized mail notice, he instructed Witter

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to send it out at this expense. (Dkt. no. 4 at 8-9.) However, Witter claims that Plaintiff

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initially instructed the mail staff to dispose of the mail. (Dkt. no. 66-5 at 3.) The

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Magistrate Judge properly concludes that this factual dispute, along with the proximity in
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time with the activities in the small claims actions, create a genuine factual dispute as to

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whether Witter dispose of Plaintiff’s mail as retaliation. (Dkt. no. 80 at 13.) Viewing this

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evidence in the light most favorable to Plaintiff, a rational trier of fact could find that

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Witter withheld and disposed of Plaintiff’s mail because he filed small claims actions

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against her. The Court agrees with the Magistrate Judge’s findings.

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Defendants argue that Plaintiff was attempting to misuse the mail and was able

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to file his opposition to the motion to dismiss. (Dkt. no. 81 at 7.) But these arguments do

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not show an absence of a material issue of fact on the issue of causation. Defendants

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also challenge Plaintiff’s claim as to Witter’s motive for confiscating his mail. (Id.)

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However, as the Magistrate Judge noted, whether there is a causal connection between

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the destruction of Plaintiff’s mail and the small claims actions is a factual issue that must

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be decided by the jury.

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The Magistrate Judge recommends denying summary judgment on count III

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because the question of whether the force used was excessive involves material factual

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disputes. More precisely, the dispute centers on the parties’ competing versions of what

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transpired in the approximately 4 minutes between the time Defendants entered

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Plaintiff’s cell to extract him to when they escorted Plaintiff out. (Dkt. no. 80 at 20.)

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Defendants argue that there they were compelled to decide whether to maintain

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order given Plaintiff’s conduct (i.e., Plaintiff had refused orders to surrender his

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restraints and Plaintiff and his cellmates had stacked boxes in front of the door). This

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argument misses the point because Plaintiff’s claim of excessive force centers on the

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force used after the officers entered Plaintiff’s cell. (Dkt. no. 4 at 10-11.) Indeed, Plaintiff

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conceded that he would not surrender to be uncuffed until he spoke with Baker. (Dkt.

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no. 76 at 10.)

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Defendants also contend that the Magistrate Judge failed to give proper

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deference to the officers in determining the force necessary to maintain order. When a

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prison official stands accused of using excessive physical force in violation of the cruel

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and unusual punishment clause of the Eighth Amendment, the question turns on
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whether force was applied in a good-faith effort to maintain or restore discipline, or

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maliciously and sadistically for the purpose of causing harm. Hudson v. McMillian, 503

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U.S. 1, 7 (1992) (citing Whitley v. Albers, 475 U.S. 312, 320-21 (1986)). In determining

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whether the use of force was wanton and unnecessary, it is proper to consider factors

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such as the need for application of force, the relationship between the need and the

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amount of force used, the threat reasonably perceived by the responsible officials, and

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any efforts made to temper the severity of the forceful response. Id. at 7.

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The video footage of the extraction does not support Defendants’ version of the

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events, or of Plaintiff’s versions. (Dkt. no. 69 (second video).) Plaintiff contends that he

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was restrained after the officers entered his cell and did not resist being restrained, but

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the officers nevertheless beat him. (Dkt. 4 at 10-11; dkt. no. 76 at 43, 45.) Plaintiff also

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disputes Defendants’ contention that he attacked them by using and swinging a sock

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with soap inside as a weapon. (Dkt. no. 76 at 37, 43.) The video footage does not give

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the viewer a picture of what transpired after officers entered Plaintiff’s cells. The door to

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the cell appeared to have been blocked with boxes of papers. However, all that is visible

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after the officers entered the cell is their movements and it appears they were hovering

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over Plaintiff for a few minutes but even this is not clear. While noises could be heard,

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including banging and yelling, the sources of the noises are not clear. Viewing Plaintiff’s

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allegations and drawing all inferences in his favor, a rational trier of fact could find that

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Plaintiff had complied with the order to be restrained after the officers entered the cell to

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extract him, but they purportedly beat him anyways. A rational trier of fact could infer

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from these facts that the officers did not have a good faith reason to use force and did

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so maliciously for the purpose of causing harm. Accordingly, the Court agrees with the

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Magistrate Judge and will adopt his recommendation.
Plaintiff’s Objections

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B.

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The Magistrate Judge recommends granting summary judgment on count I,

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count II as it relates to withholding of mail stored in Plaintiff’s laundry bag, and count IV,

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and on the claim that Baker should be liable as a supervisor. (Dkt. no. 80.) Plaintiff
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objects to the Magistrate Judge’s recommendations with respect to count I, count II and

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supervisory liability.1 The Court will therefore adopt the Magistrate Judge’s

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recommendation to grant summary judgment on count IV. See Thomas, 474 U.S. at

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149.

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The Magistrate Judge recommends granting summary judgment because of the

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absence of evidence to show a causal connection between Plaintiff’s filing of his

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grievances and the searches of his cell. (Dkt. no. 80 at 8.) First, the Magistrate Judge

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found Plaintiff failed to dispute Mullins’ claim that he was not aware that Plaintiff had

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filed any grievance against him. (Id.) Second, the Magistrate Judge found that the legal

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work that was removed on March 30, 2013, was improperly stored in Plaintiff’s laundry

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bag, and Plaintiff failed to refute Mullins’ claim that to the extent he took any blank

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grievance forms on May 11, 2013, he only took them because they were excessive, and

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the legal boxes taken on May 25, 2013, were not used to store legal documents. (Id.)

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Plaintiff raises several arguments in his objection which the Court will address.

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In count I, Plaintiff alleges he filed a grievance against Mullins on March 8 and 16

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2013, April 13 and 17, 2013, and May 20, 2013. (Dkt. no. 4 at 6-7.) He alleges that

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Mullins and another officer conducted a search of his cell on March 30, 2013, April 11,

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2013, and May 11 and 25, 2013, in retaliation. (Id.) NDOC policy provides that searches

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may be conducted at any time and at a minimum once a month. (Dkt. no. 66-3 at 2.)

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The March 30 search revealed that Plaintiff was storing his legal work in his laundry bag

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and using it as weight.2 (Id.) The May 25 search resulted in legal boxes being taken

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away because they were not used to store legal documents. (Id. at 3.) In his objection,

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Plaintiff’s objection includes a discussion on qualified immunity. (Dkt. no. 83 at
15-23.) However, the Magistrate Judge found that a genuine dispute of material facts
exists to preclude a finding of qualified immunity in favor of Witter, Rigney, Montoya,
Hammock and Deeds. (Dkt. no. 80 at 25-26.) This recommendation is in favor of
Plaintiff. The Court will assume that Plaintiff does not object to the ruling. In any event,
the Court agrees with the Magistrate Judge’s recommendation.
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In his objection, Plaintiff claims he had to store legal documents in his laundry
bag because of the limited space in his cell. (Dkt. no. 83 at 6.) Plaintiff’s reason for
using the laundry bag not for its intended purpose is irrelevant here.
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Plaintiff contends he refuted that legal boxes were being used improperly by demanding

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that Mullins provide an unauthorized property form, which Mullins refused. (Dkt. no. 83

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at 6.) Plaintiff claims Mullins did not log the May 25 search in the log book as required

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under NDOC policy. (Dkt. no. 76 at 10, 42.) Mullins could not recall whether he did.

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(Dkt. no. 77 at 3.)

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Prisoners have a First Amendment right to file prison grievances and to pursue

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civil rights litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.

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2004). To state a viable First Amendment retaliation claim in the prison context, a

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plaintiff must allege: “(1) [a]n assertion that a state actor took some adverse action

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against an inmate (2) because of (3) that prisoner’s protected conduct, and that such

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action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action

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did not reasonably advance a legitimate correctional goal.” Id. at 567-68.

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Plaintiff argues that he has offered evidence in his opposition brief to show that

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Mullins was aware that he had filed a grievance against Mullins. (Dkt. no. 83 at 5.) In

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Plaintiff’s March 8, 2013 grievance, Plaintiff complained about Mullins’ alleged abusive

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comment in response to Plaintiff’s request to be taken back to his cell. (Dkt. no. 76 at

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48-49.) In the informal level response, Moore denied the grievance, stating: “Staff deny

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your allegations of abusive language.” (Id. at 50.) In response to Plaintiff’s first level

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grievance signed on March 20, 3013, Baker stated, in pertinent part: “These allegations

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have been investigated and there is no proof that these statements were made to you

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by the Senior Officer.” (Id. at 51-52.) Viewing this evidence in the light most favorable to

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Plaintiff, a rational trier of fact could find that Mullins was aware by March 20, 2013, that

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Mullins had filed a grievance against him because he was informed of it during the

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investigation that led to the denial of the grievance. This finding would support the

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causation element of Plaintiff’s retaliation claim.

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As to the other elements, the Court finds that Plaintiff has offered evidence to

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raise a triable issue of fact. The March 30 and subsequent searches were close in time

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to Plaintiff’s March 8 grievance of which Mullins was aware. While NDOC policy
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provides for searches to be conducted at a minimum once a month, Plaintiff’s cell was

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searched four times during a 30 day period: March 30, 2013, April 11, 2013, and May

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11 and 25, 2013. Defendants do not offer evidence to dispute Plaintiff’s contention that

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Mullins failed to log the May 25 search in violation of NDOC’s policy. Mullins’ claim that

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he could not recall whether he did is not enough to resolve a material issue of fact.

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Finally, that the searches on March 30, May 11 and May 25 resulted in items being

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properly confiscated may not lend legitimacy to the searches if they were conducted as

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a pretext for retaliation.3 Viewing these evidence and drawing all inferences in favor of

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Plaintiff, a rational trier of fact could find that the searches chilled Plaintiff’s exercise of

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his First Amendment rights and did not advance a legitimate correctional goal.
In sum, the Court finds that Plaintiff’s has met his burden in opposing summary
judgment and will deny summary judgment on count I.

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The Magistrate Judge recommends granting summary judgment as to the First

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Amendment retaliation claim against Witter in count II that is predicated on the

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withholding of legal mail stored in Plaintiff’s laundry bag because Plaintiff offers no

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evidence to dispute the reason the legal mail was taken — it was improperly stored in

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Plaintiff’s laundry bag. (Dkt. no. 80 at 11-12.) Plaintiff contends that he stored his legal

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mail in the laundry bag because there was no space in his cell. (Dkt. no. 83 at 8.)

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However, that he may have a reason for using the laundry bag in an unauthorized

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manner does not show that the legal mail was improperly confiscated or withheld. The

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Court agrees with the Magistrate Judge’s recommendation and will grant summary

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judgment on this part of count II.

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The Magistrate Judge found that the undisputed evidence does not support

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imposition of supervisory liability. (Dkt. no. 80 at 22-25.) Plaintiff argues that he has

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Defendants argue that the items taken during the searches advanced a
legitimate penological interest. (Dkt. no. 84 at 4.) While the items improperly stored in
legal boxes and laundry bags may have been properly confiscated pursuant to
legitimate NDOC policy, the question is whether Plaintiff has shown that the purportedly
random searches themselves did not reasonably advance a legitimate correctional goal.
That the searches led to items being properly confiscated does not justify an action that
may have been taken to chill Plaintiff’s exercise of his constitutional rights.
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offered evidence to show that Baker was deficient in the training, supervision or control

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of her subordinates. (Dkt. no. 83 at 11-15.) The Court agrees with the Magistrate

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Judge’s findings and will adopt his recommendation.

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V.

CONCLUSION

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It is therefore ordered, adjudged and decreed that the Report and

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Recommendation of Magistrate Judge William G. Cobb (dkt. no. 80) be accepted and

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adopted in in part and rejected in part. Defendants’ Motion for Summary Judgment (dkt.

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no. 66) is granted in part and denied in part as follows:

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(1) The Motion is denied as to the First Amendment retaliation claim against

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Mullins in count I;

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(2) The Motion is granted as to the First Amendment retaliation claim against

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Witter in count II that is predicated on the withholding of legal mail stored in

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Plaintiff’s laundry bag and is denied as to the claim in count II that is predicated

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on the withholding of mail sent in by Plaintiff’s mother;

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(3) The Motion is denied as to the Eighth Amendment excessive force claim in

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count III against Rigney, Montoya, Hammock and Deeds;

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(4) The Motion is granted as to the retaliation claim in count IV against Moore;

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and

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(5) The Motion is granted as to the supervisory liability claim against Baker.

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It is further ordered that Plaintiff’s reply (dkt. no. 85) is stricken.

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It is further ordered that Plaintiff’s motion for extension of time (dkt. no. 82) is

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granted nunc pro tunc.
The Clerk is directed to grant judgment in favor of Defendants Moore and Baker
in accordance with this Order.
DATED THIS 23rd day of March 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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