Augborne v. Filson et al

Filing 66

ORDER adopting in its entirety ECF No. 65 Report and Recommendation; denying in part and granting in part ECF No. 57 Motion for Summary Judgment; dismissing from this action Defendant James Dzurenda; dismissing from this action the Eighth Amendment and conspiracy claims against Defendants John Doe 1 through 10; dismissing from this action the Fourteenth Amendment and supervisory liability claims against Defendant John Doe Associate Warden of Operations. Signed by Chief Judge Miranda M. Du on 7/8/2020. (Copies have been distributed pursuant to the NEF - KR)

Case 3:17-cv-00393-MMD-CLB Document 66 Filed 07/08/20 Page 1 of 4
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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRIT F. AUGBORNE, III,

Case No. 3:17-cv-00393-MMD-CLB
Plaintiff,

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ORDER

v.
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FILSON, et al.,
Defendants.

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Pro Se Plaintiff Brit F. Augborne, III, an inmate in the custody of the Nevada

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Department of Corrections (“NDOC”) , brings this action under 42 U.S.C. § 1983 for events

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that occurred at Ely State Prison (“ESP”). (ECF No. 20.) Before the Court is the Report

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and Recommendation (“R&R”) of United States Magistrate Judge Carla Baldwin (ECF No.

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65), recommending that the Court deny in part and grant in part Defendants’ 1 motion for

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summary judgment (“Motion”) (ECF No. 57). Plaintiff and Defendants had until June 30,

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2020, to file objections. To date, no objection to the R&R has been filed. For this reason,

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and as explained below, the Court adopts the R&R and denies in part and grants in part

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the Motion.

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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 fails

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

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1Defendants

are James Dzurenda and Michael Stolk.

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

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United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (“De novo review of the

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magistrate judges’ findings and recommendations is required if, but only if, one or both

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parties file objections to the findings and recommendations.”) (emphasis in original); Fed.

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R. Civ. P. 72, Advisory Committee Notes (1983) (providing that the court “need only satisfy

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itself that there is no clear error on the face of the record in order to accept the

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recommendation”).

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Nevertheless, the Court conducts de novo review to determine whether to accept

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the R&R. Upon reviewing the R&R and underlying briefs, this Court finds good cause to

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adopt Judge Baldwin’s recommendation in full.

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Judge Baldwin recommends denying summary judgment on Plaintiff’s excessive

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force and retaliation claims against Stolk because genuine issues of material fact exist.

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(ECF No. 172 at 5-13.) Defendants argue that there is no evidence of any altercation

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between Stolk and Plaintiff, much less that Stolk used any force against Plaintiff. (ECF No.

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57 at 7-9.) Defendants contend that the sworn statements in Plaintiff’s verified complaint

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do not establish a genuine issue of material fact because they are “uncorroborated and

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self-serving” and are “blatantly contradicted by the record, so that no reasonable jury could

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believe them.” (ECF No. 57 at 7-9 (internal citations omitted).) Judge Baldwin found,

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however, that the Court must consider Plaintiff’s verified complaint because “the mere self-

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serving nature of testimony permits a court to discount that testimony where it states only

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conclusions and not facts that would be admissible evidence.” (ECF No. 65 at 8 (citing

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Manley v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017) (internal quotation marks omitted).)

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Because Plaintiff’s verified complaint—treated as an affidavit—contains specific facts

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describing how Stolk retaliated against Plaintiff for requesting a grievance by beating

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Plaintiff while shackled, Judge Baldwin found that Defendants failed to meet their initial

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burden of establishing an absence of a genuine issue of material fact as to Plaintiff’s

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excessive force and retaliation claims. (Id. at 7-8.) The Court agrees with Judge Baldwin’s

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findings.
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Judge Baldwin also found Stolk is not protected by qualified immunity because it

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was clearly established in 2016 an officer violates the Eighth Amendment by beating an

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inmate simply because the inmate argued with the officer or requested a grievance. (ECF

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No. 65 at 14-16 (citing Hudson v. McMillian, 503 U.S. 1 (1992); Wilkins v. Gaddy, 559 U.S.

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34, 35 (2010).) Judge Baldwin also found that it was well-settled law that an officer violates

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the First Amendment by retaliating against an inmate for engaging in protected conduct

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such as requesting a grievance. (ECF No. 65 at 16-18 (citing Brodheim v. Cry, 584 F.3d

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1262, 1270 (9th Cir. 2009); Schroeder v. McDonald, 55 F.3d 454, 461 (9th Cir. 1995).)

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The Court again agrees.

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Judge Baldwin also found no genuine issue of material fact exists as to Plaintiff’s

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supervisory liability claim against Dzurenda because Plaintiff failed to provided evidence

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that Dzurenda personally participated in or knew or should have known of the alleged

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constitutional violations, or promulgated or implemented a policy that was the moving force

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of those violations. (Id. at 11-13.) For these reasons, the Court agrees with Judge

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Baldwin’s recommendation to grant summary judgment as to Plaintiff’s supervisory liability

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claim against Dzurenda. (Id.)

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Additionally, Judge Baldwin found that Plaintiff has abandoned his Eighth

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Amendment and conspiracy claims against John Does one (1) through ten (10) and his

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Fourteenth Amendment and supervisory liability claims against John Doe Associate

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Warden of Operations by failing to identify the Doe Defendants. (Id. at 2 n.2.) Accordingly,

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Judge Baldwin recommends that the Court dismiss the claims against Doe Defendants.

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(Id.) The Court again agrees.

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It is therefore ordered that Judge Baldwin’s Report and Recommendation (ECF No.
65) is adopted in its entirety.

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It is further ordered that Defendants Michael Stolk and James Dzurenda’s motion

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for summary judgment (ECF No. 57) is denied in part and granted in part. It is denied as

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to the excessive force and retaliation claims against Defendant Michael Stolk. It is granted

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as to the supervisory liability claim against Defendant James Dzurenda.
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It is further ordered that Defendant James Dzurenda is dismissed from this action.

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It is further ordered that the Eighth Amendment and conspiracy claims against

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Defendants John Doe one (1) through ten (10) are dismissed from this action.

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It is further ordered that the Fourteenth Amendment and supervisory liability claims

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against Defendant John Doe Associate Warden of Operations are dismissed from this

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action.

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DATED THIS 8th day of July 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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