McGuffey v. Bennette et al

Filing 45

ORDER that ECF No. 40 Report and Recommendation is accepted and adopted in full; ECF No. 32 Defendants' Motion for Summary Judgment is granted; ECF No. 41 Plaintiff's ex parte motion for appointment of counsel is denied as moot; Clerk directed to enter judgment in favor of Defendants and close case. Signed by Judge Miranda M. Du on 2/20/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT ADAM McGUFFEY,
Plaintiff,

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Case No. 3:16-cv-00356-MMD-VPC

v.
TRAVIS BENNETTE, et al.,

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ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
VALERIE P. COOKE

Defendants.

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I.

SUMMARY

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Before the Court is the Report and Recommendation (“R&R”) of United States

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Magistrate Judge Valerie P. Cooke (ECF No. 40) relating to Defendants’ Motion for

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Summary Judgment (“Motion”) (ECF No. 32). Plaintiff filed an objection to the R&R (ECF

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No. 42), and Defendants filed a response thereto (ECF No. 44).
For the reasons discussed below, the Court accepts and adopts the R&R in full.

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II.

BACKGROUND

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

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of Corrections (“NDOC”). The events giving rise to this action occurred while Plaintiff was

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housed at Lovelock Correctional Center. The Court permitted Plaintiff to proceed on two

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claims under 42 U.S.C. § 1983: an Eighth Amendment conditions of confinement claim

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and a First Amendment retaliation claim.1 (ECF No. 12 at 10.) Further background

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regarding Plaintiff and this action is included in the R&R (see ECF No. 40 at 1-3), which

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this Court adopts.

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1Specifically,

the screening order permitted Counts II and IV (for retaliation) to
proceed. (ECF No. 12 at 7-8, 10.)

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III.

LEGAL STANDARD
Review of the Magistrate Judge’s Recommendations

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A.

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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)(C). Where a

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party 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.” Id. Where a party fails to object, however,

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the court is not required to conduct “any review at all . . . of any issue that is not the

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subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth

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Circuit has recognized that a district court is not required to review a magistrate judge’s

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report and recommendation where no objections have been filed. See United States v.

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Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

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Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that

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district courts are not required to review “any issue that is not the subject of an

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objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

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Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

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which no objection was filed).

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In light of Plaintiff’s objection to the Magistrate Judge’s R&Rs, this Court finds it

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appropriate to engage in a de novo review to determine whether to adopt Magistrate

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Judge Cooke’s R&R. Upon reviewing the R&R and records in this case, this Court finds

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good cause to adopt the Magistrate Judge’s R&R in full.

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B.

Summary Judgment Standard

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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) (internal citation omitted). Summary judgment is
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appropriate when the pleadings, the discovery and disclosure materials on file, and any

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affidavits show “there is no genuine issue as to any material fact and that the moving

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party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317,

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330 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a

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

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could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material

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

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

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require a jury or judge to resolve the parties' differing versions of the truth at trial.’” Aydin

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

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

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

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nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103

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(9th Cir. 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). “In

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order to carry its burden of production, the moving party must either produce evidence

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negating an essential element of the nonmoving party’s claim or defense or show that

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the nonmoving party does not have enough evidence of an essential element to carry its

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ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd v. Fritz Cos.,

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Inc., 210 F.3d 1099, 1102 (9th Cir. 2000) (internal citation omitted). Once the moving

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

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to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477

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U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must

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produce specific evidence, through affidavits or admissible discovery material, to show

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that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991),

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and “must do more than simply show that there is some metaphysical doubt as to the
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material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (internal

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citations omitted). “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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The Magistrate Judge recommends granting summary judgment in favor of

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Defendants because Plaintiff failed to exhaust his administrative remedies prior to

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initiating this action. (ECF No. 40 at 9.) Plaintiff’s objection does not specifically address

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the Magistrate Judge’s finding that he failed to exhaust his administrative remedies and

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instead asks the Court to disregard the Magistrate’s R&R, requests the appointment of

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counsel, and states that the issue of the “grievance process” is “moot” because he has

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“proven torture by misuse of solitary confinement,” “retaliation,” and that he has been

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“chilled.” (ECF No. 42 at 1-2.) However, these contentions by Plaintiff miss the point.

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In order to bring claims against Defendants for violating his Eighth and First

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Amendment rights, the Prison Litigation Reform Act (“PLRA”) requires that Plaintiff first

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exhaust his administrative remedies through the NDOC grievance process, specifically

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for grievance number 2006-30-18522 (ECF No. 30 at 21 (identifying in his complaint the

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specific grievance he attempted to exhaust)). See 42 U.S.C. § 1997e(a); see also Porter

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v. Nussle, 534 U.S. 516, 524 (2002) (finding that exhaustion of available remedies is a

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prerequisite to a prisoner bringing suit with respect to prison conditions under § 1983).

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Thus, in order to have exhausted NDOC’s administrative remedies, Plaintiff needed to

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“use all steps the prison holds out”—specifically, those identified in Administrative

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Regulation (“AR”) 740—so that NDOC officials could actually reach, or at the very least

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attempt to reach, the merits of his issues. See Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th

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Cir. 2009).

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In the R&R, the Magistrate Judge found that Plaintiff failed to comply with NDOC’s

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grievance process by failing to file a first level grievance that contained facts of the

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incidents giving rise to this action that were sufficient to comply with AR 740.06(2) and

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by failing to file a second level grievance altogether,2 which is required. (ECF No. 40 at

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7.) The Magistrate Judge also found that Plaintiff failed to meet his burden “to come

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forward with evidence showing that there is something in his particular case that made

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the existing and generally available administrative remedies effectively unavailable to

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him,” Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014). (ECF No. 40 at 7-8.) The

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Magistrate Judge reasoned that Plaintiff failed to meet this burden because upon receipt

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of official responses that his informal and first level grievances failed to comply with AR

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740, Plaintiff had the opportunity to but did not amend either level of grievance to cure

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the defects as specified by the official responses. (ECF No. 40 at 8.) Moreover, the

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Magistrate Judge correctly found Plaintiff failed to demonstrate that administrative

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remedies were effectively unavailable to him because of NDOC officials’ “machination,

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misrepresentation, or intimidation,” see Ross v. Blake, 136 S. Ct. 1850, 1860 (2016). In

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particular, the Magistrate Judge found a lack of “machination, misrepresentation, or

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intimidation” because the official responses indicated how Plaintiff failed to comply with

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AR 740 and Plaintiff still filed numerous emergency grievances after initiation of this

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lawsuit, the latter indicating that procedural difficulties with AR 740 did not dissuade

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Plaintiff from believing that remedies were available through the NDOC grievance

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process. (ECF No. 40 at 8.) The Court agrees with these findings. Plaintiff’s failure to

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exhaust his administrative remedies—specifically, the failure to file his informal and first

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level grievances in conformity with AR 740 and his failure to file a subsequent second

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level grievance for # 2006-30-18522—require this Court to enter judgment in

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Defendants’ favor without addressing the merits of Plaintiff’s claims.

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Having reviewed the R&R, the briefs relating to Defendants’ Motion and Plaintiff’s

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objection, the Court agrees with the Magistrate Judge’s analysis and recommendations.

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The Court will therefore adopt the R&R.

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2Plaintiff

attached copies of many second level grievances to his opposition (see,
e.g., ECF No. 38-1 at 79-81, 84-85, 128-30, 159-60, 187-88), but these grievances do
not relate specifically to the incidents giving rise to the claims in this lawsuit or flow from
the grievance for which this lawsuit was brought (# 2006-30-18522). Moreover, none of
these second level grievances was exhausted at the time this lawsuit was initiated.
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V.

CONCLUSION
It

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is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 40) is accepted and

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adopted in full.
It is further ordered that Defendants’ Motion for Summary Judgment (ECF No. 32)

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is granted.
It is further ordered that Plaintiff’s ex parte motion for appointment of counsel

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(ECF No. 41) is denied as moot.
The Clerk is directed to enter judgment in favor of Defendants and close this

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case.
DATED THIS 20th day of February 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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