Polk v. Carpenter et al

Filing 62

ORDER accepting and adopting in full ECF No. 52 Report and Recommendation; denying Defendants' 34 Motion for Summary Judgment; overruling Defendants' ECF No. 60 Objection. Signed by Judge Miranda M. Du on 3/14/2019. (Copies have been distributed pursuant to the NEF - KR)

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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.

ORDER

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RANALDO WALDO, et al.,
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Defendants.

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I.

SUMMARY

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Pro se Plaintiff Renard T. Polk alleges violations of his First, Eighth and Fourteenth

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Amendment rights under 42 U.S.C. § 1983 because of the way he was treated by

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corrections officers and prison officials while in the custody of the Nevada Department of

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Corrections (“NDOC”) at Lovelock Correctional Center (“LCC”) and Ely State Prison

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(“ESP”). (ECF No. 16.) Following the Court’s prior order screening his Complaint, Plaintiff’s

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case consists of a First Amendment retaliation claim and an Eighth Amendment deliberate

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indifference to safety claim. (ECF No. 15 at 13-14.) Before the Court is the Report and

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Recommendation (“R&R” or “Recommendation”) of Magistrate Carla Baldwin Carry (ECF

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No. 52) recommending the Court deny Defendants James Donnelly and Ranaldo Waldo’s

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motion for summary judgment (“Motion”) (ECF No. 34).1 Defendants filed an objection

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(“Defendants’ Objection”) to the R&R (ECF No. 60), and Plaintiff filed a response

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(“Plaintiff’s Response”) to Defendants’ Objection (ECF No. 61). As further explained

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below, the Court agrees with the R&R because Defendants did not meet—and have not

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met—their summary judgment burden to show Plaintiff failed to exhaust his administrative

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filed two affidavits in lieu of a response to Defendants’ summary judgment
motion (ECF No. 37, 38), and Defendants filed a reply (ECF No. 42).

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remedies regarding his First Amendment retaliation claim. Thus, the Court will accept the

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R&R and overrule Defendants’ Objection.

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II.

BACKGROUND

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A.

Relevant Facts

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As discovery has not yet begun in this matter, the Court refers to its prior description

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of the relevant facts in the screening order regarding Count I (ECF No. 15 at 4-5) and

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Count III (id. at 9-10).

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To briefly restate, Count I alleges in relevant part that Waldo and Donnelley

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approached Plaintiff in the LCC cafeteria, falsely accused him of not having his shirt tucked

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in, and then took him to solitary confinement to retaliate against Plaintiff because he had

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previously filed lawsuits against them, in violation of his First Amendment rights. (Id. at 4.)

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Count III alleges in relevant part that Plaintiff submitted an emergency grievance to staff

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member Jane Doe I and prison official John Doe I at ESP because he had become afraid

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that his cellmate would harm him, and requested a transfer. (Id. at 9.) Jane Doe I and John

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Doe I took no action on his emergency grievance. (Id.) Not long after his emergency

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grievance was ignored, Plaintiff’s cellmate attacked him with a makeshift knife. (Id.)

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Plaintiff suffered a broken hand and wounds to his face. (Id.) Thus, Plaintiff alleges Jane

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Doe I and John Doe I showed deliberate indifference to his safety in violation of his Eighth

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Amendment rights. (Id. at 9-10)

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B.

Summary Judgment Proceedings

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Defendants Waldo and Donnelley moved for summary judgment as to Plaintiff’s

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First Amendment retaliation claim in Count I only, on the exclusive basis that Plaintiff failed

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to exhaust his administrative remedies before filing suit. (ECF No. 34.) Judge Carry

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recommended denying Defendants’ Motion because they failed to meet their burden to

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show that Plaintiff failed to exhaust as a matter of law based on the undisputed facts. (ECF

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No. 52 at 6.) More specifically, Judge Carry explained in the R&R that Defendants failed

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to establish Plaintiff never grieved his First Amendment retaliation claim because they

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supported their Motion with incomplete information about Plaintiff’s grievances. (Id. at 62

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8.) Thus, Judge Carry could not verify Plaintiff had never grieved—and therefore failed to

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exhaust—his First Amendment retaliation claim because she could not read all of Plaintiff’s

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grievances. (Id. at 7.) Further, Judge Carry pointed out that one of Defendants’ exhibits

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included a note that Plaintiff was transferred in “furtherance of a retaliatory

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scheme/campaign being orchestrated against grievance,” which suggested Plaintiff may

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have exhausted his administrative remedies regarding his First Amendment retaliation

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claim. (Id.) Finally, Judge Carry noted Defendants’ motion was premature—though not

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prohibited—because discovery has not even begun in this case. (Id. at 7-8.)

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Defendants’ Objection is basically what their Motion should have been. They

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attached what appears to be Plaintiff’s full grievance history, and more specifically

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explained what each of Plaintiff’s grievances was about, how NDOC responded to each

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and why, and the procedural reasons why Defendants contend some of those grievances

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were not fully exhausted. (ECF No. 60.) Defendants reassert they are entitled to summary

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judgment on Plaintiff’s First Amendment retaliation claim because he failed to first exhaust

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his administrative remedies by never grieving it. (Id.)

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In Plaintiff’s Response, he argues in relevant part that he fully exhausted his First

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Amendment retaliation claim either through grievance # 2006-30-06304 (“Grievance 304”)

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(ECF No. 61 at 5), grievance # 2006-30-11909 (“Grievance 909”) (ECF No. 61 at 6), or

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his Emergency Grievance (id. at 7 (citing to ECF No. 37 at 26-27)). In the portion of his

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Emergency Grievance Plaintiff relies on (ECF No. 61 at 7), Plaintiff asserts that ESP is

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unlawfully exercising custodial authority over him, and he is being unlawfully imprisoned

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(ECF No. 37 at 26). However, that page of the Emergency Grievance says, ‘page one of

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three,’ and the other two pages do not appear to have been submitted to the Court.

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III.

LEGAL STANDARDS
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.” 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 subject

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

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recognized that a district court is not required to review a magistrate judge’s report and

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recommendation where no objections have been filed. See United States v. Reyna-Tapia,

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328 F.3d 1114, 1121 (9th Cir. 2003) (disregarding the standard of review employed by the

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district court when reviewing a report and recommendation to which no objections were

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made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003)

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(reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that district

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courts are not required to review “any issue that is not the subject of an objection.”). Thus,

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if there is no objection to a magistrate judge’s recommendation, then the Court may accept

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the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226

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(accepting, without review, a magistrate judge’s recommendation to which no objection

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was filed). In light of Defendants’ Objection, the Court will conduct a de novo review of

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Judge Carry’s R&R and the underlying summary judgment briefing.

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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 no

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dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18

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F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings,

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the discovery and disclosure materials on file, and any affidavits “show there is no genuine

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issue as to any material fact and that the movant is entitled to judgment as a matter of

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law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is

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a sufficient evidentiary basis on which a reasonable fact-finder could find for the

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

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the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986).

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Where reasonable minds could differ on the material facts at issue, however, summary

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judgment is not appropriate. See id. at 250-51. “The amount of evidence necessary to
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raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the

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parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897,

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902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89

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(1968)). In evaluating a summary judgment motion, a court views all facts and draws all

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inferences in the light most favorable to the nonmoving party. See Kaiser Cement Corp.

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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 of

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material fact. See 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 pleadings

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but must produce specific evidence, through affidavits or admissible discovery material, to

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

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1991), and “must do more than simply show that there is some metaphysical doubt as to

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the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting

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Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere

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existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.”

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Anderson, 477 U.S. at 252.

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IV.

DISCUSSION

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The Court agrees with Judge Carry that Defendants did not carry their summary

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judgment burden to demonstrate Plaintiff failed to exhaust his administrative remedies

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regarding his First Amendment retaliation claim, and will therefore accept and adopt in full

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Judge Carry’s Recommendation to deny Defendants’ Motion.

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Defendants’ Motion is entirely premised on exhaustion. (ECF No. 34.) The Prison

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Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to

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prison conditions under section 1983 . . . or any other Federal law, by a prisoner confined

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in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted.” 42 U.S.C. § 1997e(a). The Supreme Court has interpreted §
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1997e(a) as “requir[ing] proper exhaustion,” Woodford v. Ngo, 548 U.S. 81, 93 (2006),

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which “demands compliance with an agency’s deadlines and other critical procedural

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rules.” Id. at 90. Proper exhaustion requires “a grievant [to] use all steps the prison holds

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out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117,

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1119 (9th Cir. 2009). “[W]hen a prison’s grievance procedures are silent or incomplete as

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to factual specificity, a grievance suffices [for exhaustion purposes] if it alerts the prison to

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the nature of the wrong for which redress is sought.” Id. at 1120 (internal quotation marks

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and citation omitted).

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But “[f]ailure to exhaust under the PLRA is ‘an affirmative defense the defendant

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must plead and prove.’” Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (quoting

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Jones v. Bock, 549 U.S. 199, 204, 216 (2007)). Defendants may meet their burden by

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“prov[ing] that there was an available administrative remedy, and that the prisoner did not

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exhaust that available remedy.” Id. at 1172. Once met, the burden shifts to the inmate to

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show that “there is something in his particular case that made the existing and generally

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available administrative remedies effectively unavailable to him.” Id. Defendants, however,

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retain “the ultimate burden of proof.” Id.

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Defendants have failed to carry their burden up to this point in this litigation, whether

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under the PLRA or summary judgment standard. Defendants’ Objection tacitly concedes

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that Judge Carry’s Recommendation is correct because it takes a much more thorough

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approach—and includes much more evidence—in attempting to establish Plaintiff failed

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to exhaust. Even still, it does not persuade the Court to reject Judge Carry’s

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Recommendation on the basis of the new evidence submitted with Defendants’ Objection.

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For example, in Plaintiff’s Response, he points to Grievance 304, Grievance 909, and his

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Emergency Grievance, stating that any one of them suffices for exhaustion purposes

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regarding his First Amendment retaliation claim. (ECF No. 61 at 5-7.) Grievance 304

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discusses a “retaliatory scheme being committed and orchestrated against the grievant.”

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(ECF No. 60-3 at 5.) Grievance 909 includes the phrase “retaliatory transfer.” (ECF No.

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60-9 at 8.) And the Court is unable to review two pages of the Emergency Grievance.
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(ECF No. 37 at 26.) Drawing all inferences in Plaintiff’s favor—as the Court must at this

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stage—these grievances may suffice to alert “the prison to the nature of the wrong for

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which redress is sought.” Griffin, 557 F.3d at 1120. Further, while Defendants argue

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Plaintiff did not exhaust his First Amendment retaliation claim through Grievance 304

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because he failed to properly proceed through NDOC’s entire appeals process (ECF No.

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60 at 26), Plaintiff responds with various arguments as to why he was not required to

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complete that appeals process to have properly exhausted (ECF No. 61 at 3-10.)

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In sum, genuine disputes of material fact stand in the way of the Court resolving

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Defendants’ exhaustion defense to Plaintiff’s First Amendment retaliation claim at this

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time. Indeed, and especially considering that discovery has not even begun in this case,

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the parties may benefit from the factual development of their claims and defenses that

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discovery facilities. Further, filing a renewed motion for summary judgment at some later

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time may help focus Defendants’ exhaustion arguments in light of Plaintiff’s Response.
For these reasons, the Court accepts and adopts the R&R, and denies Defendants’

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Motion.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several cases

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not discussed above. The Court has reviewed these arguments and cases and determines

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that they do not warrant discussion as they do not affect the outcome of the motion and

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R&R before the Court.

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It is therefore ordered that the Magistrate Judge’s Report and Recommendation

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(ECF No. 52) is accepted and adopted in full. Defendants’ motion for summary judgment

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(ECF No. 34) is denied. Defendants’ Objection (ECF No. 60) to the Report and

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Recommendation is overruled.

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DATED THIS 14th day of March 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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