Tipton v. Guice et al

Filing 102

ORDERED that the Report and Recommendation (ECF No. 97 ) is ADOPTED IN PART and REJECTED IN PART. Defendant Filson's Motion for Summary Judgment (ECF No. 85 ) is GRANTED. Signed by Judge Robert C. Jones on 1/8/2021. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:17-cv-00032-RCJ-CLB Document 102 Filed 01/08/21 Page 1 of 2

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DUANE TIPTON,

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Case No. 3:17-cv-00032-RCJ-CLB

Plaintiff,

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vs.

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GUICE, et al.,

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ORDER

Defendants.

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

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Carla L. Baldwin (ECF No. 97) (the Recommendation) entered on November 2, 2020,

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recommending that the Court deny Defendant Filson’s Motion for Summary Judgment (ECF No.

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85). No objection to the Recommendation has been filed. This action was referred to Magistrate

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Judge Baldwin under 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 1-4 of the Rules of Practice of

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the United States District Court for the District of Nevada.

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The Court has considered the pleadings and memoranda of the parties and other relevant

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matters of record pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 3-2. The Court accepts

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and adopts the factual background and the legal standards of the Recommendation.

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Case 3:17-cv-00032-RCJ-CLB Document 102 Filed 01/08/21 Page 2 of 2

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Based on the record, however, the Court finds that no trier of fact could reasonably

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determine that Defendant Filson exhibited deliberate indifference for two reasons. First, the only

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evidence that Defendant Filson had knowledge of the alleged threats to Plaintiff’s safety is the

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grievance dated January 23, 2016. (ECF No. 88 Ex. A.) Defendant Filson properly denied this

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grievance as procedurally defective. (ECF No. 88 Ex. B.) As such, there is insufficient evidence

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to reasonably find that Defendant Filson has knowledge of these alleged threats, so Plaintiff has

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not satisfied the subjective prong of deliberate indifference. Second, liability under § 1983 only

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attaches upon the personal participation by a defendant in a constitutional violation. Taylor v. List,

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880 F.2d 1040, 1045 (9th Cir. 1989). The full extent of Defendant Filson’s participation in this

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case in the denial of the grievance. The denial of a prison grievance alone is insufficient to establish

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the requisite personal participation. See West v. Cox, No. 2:15-cv-00665-GMN-VCF, 2017 WL

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3427973, at *3 (D. Nev. Aug. 8, 2017) (holding denial of grievance insufficient to establish

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personal participation in a § 1983 action). The Court therefore grants summary judgment in favor

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of Defendant and rejects the Recommendation in this respect.
CONCLUSION

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IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 97) is
(ECF No. 85)
ADOPTED IN PART and REJECTED IN PART.
IT IS FURTHER ORDERED that Defendant Filson’s Motion for Summary Judgment

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(ECF No. 85) is GRANTED.
(ECF No. 97)

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IT IS SO ORDERED.

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Dated January 8, 2021..

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_____________________________________
ROBERT C. JONES
United States District Judge
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