Polk v. Carpenter et al

Filing 116

ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE CARLA B. CARRY - The Report and Recommendation of Magistrate Judge Carla B. Carry (ECF No. 93 ) is accepted and adopted in full. Plaintiff's Objections (ECF No. 98 ) are overruled. Plaintiff's motion for partial summary judgment (ECF No. 63 ) is denied. Signed by Chief Judge Miranda M. Du on 10/21/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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RENARD T. POLK,

Case No. 3:16-cv-00652-MMD-CBC
Plaintiff,

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v.
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TARA CARPENTER, et. al.,

ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
CARLA B. CARRY

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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 Carla B. Carry (ECF No. 93) (“R&R” or “Recommendation”) relating to Plaintiff’s

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motion for partial summary judgment (“Motion”) (ECF No. 63). Judge Carry

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recommended that the Court deny Plaintiff’s Motion. Defendant James Donnelly filed a

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non-opposition to the R&R (ECF No. 95), and Plaintiff filed objections (“Objections”)

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(ECF No. 98). The Court has reviewed Defendant’s response (ECF No. 100).

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II.

BACKGROUND
The Court incorporates the background and procedural history from the R&R.

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(See ECF No. 93 at 1-2.)

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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). 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).

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In light of Plaintiff’s Objections, this Court finds it appropriate to engage in a de

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novo review to determine whether to adopt Magistrate Judge Carry’s R&R. Upon

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reviewing the R&R and records in this case, this Court finds good cause to adopt the

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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). Summary judgment is appropriate when the

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

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

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a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is

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

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

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the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

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

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

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

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resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718

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F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S.

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253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts

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and draws all inferences in the light most favorable to the nonmoving party. Kaiser

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Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (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). Once

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

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

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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 discovery

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material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404,

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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., 285 F.3d 764, 783 (9th

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Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

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(1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s position

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will be insufficient.” Anderson, 477 U.S. at 252.

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IV.

DISCUSSION

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Judge Carry recommended denying Plaintiff’s motion for partial summary

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judgment because Plaintiff did not present evidence that he has exhausted his

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administrative remedies as to his First Amendment claim. (ECF No. 93 at 4.) Plaintiff still

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does not adduce evidence that he exhausted his administrative remedies in his

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Objections. (See ECF No. 98 at 1-4.) Thus, Plaintiff has failed to demonstrate the

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absence of a genuine issue of material fact, just as Defendants failed earlier. (See ECF

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No. 62.) The Court will adopt Judge Carry’s R&R and deny Plaintiff’s Motion.

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V.

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CONCLUSION
It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Carla B. Carry (ECF No. 93) is accepted and

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adopted in full.

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It is further ordered that Plaintiff’s Objections (ECF No. 98) are overruled.

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It is further ordered that Plaintiff’s motion for partial summary judgment (ECF No.

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63) is denied.
DATED THIS 21st day of October 2019.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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