Kennedy v. Watts et al

Filing 116

ORDER that the Report and Recommendation (ECF No. 109 ) is accepted and adopted in its entirety; the Court overrules Kevin Lee Kennedy's Objection (ECF No. 115 ); NDOC Defendants James Dzurenda and Williams Gittere's motion for summary judgment (ECF No. 92 ) is granted. Signed by Chief Judge Miranda M. Du on 1/23/2020. (Copies have been distributed pursuant to the NEF - LW)

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1, 92-2, 92-3, 92-4, 102), 2 as well as the amended complaint (ECF No. 21), the Court

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agrees with Judge Baldwin.

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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 that there is no

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genuine issue as to any material fact and that the moving party is entitled to a judgment

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as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (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 the

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suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (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. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the

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

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

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477 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) (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. Moreover, a court views all facts and draws all inferences in

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the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fischbach &

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Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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reply was filed.
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IV.

DISCUSSION

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In the R&R, Judge Baldwin recommends that the Court grant summary judgment

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for NDOC Defendants, finding: (1) Kennedy has no protected liberty interest; and (2) even

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if he did, he was afforded the requisite due process and therefore suffered no constitutional

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violation. (ECF No. 109 at 5, 9.) In his Objection, Kennedy minimally addresses Judge

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Baldwin’s first finding and largely focuses on the second issue, contending that disputes

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of material facts exist to allow him to proceed to trial. (See generally ECF No. 115.) 3 The

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Court agrees with Judge Baldwin on the first finding and will therefore adopt the R&R and

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not consider her second finding.

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The Due Process Clause of the United States Constitution prohibits a state from

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depriving any person “of life, liberty, or property, without due process of law.” U.S. Const.

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amend. XIV, § 1. The Court analyzes a procedural due process claim in two-steps. At the

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first step, the Court asks “whether there exists a liberty . . . interest” which the state has

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interfered with. Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 460 (1989). At the second

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step, the Court “examines whether the procedures attendant upon that deprivation were

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constitutionally sufficient.” Id. Clearly then, where there is no liberty interest upon

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considering step one, the Court need not analyze step two.

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Relevant to the liberty interest issue, Kennedy’s key argument is that he was a

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pretrial detainee at the time he was transferred and placed in administrative segregation

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and thus the caselaw Judge Baldwin relied on—which applies to prisoners—does not

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apply to him. (ECF No. 115 at 1, 8–10.) While it is true that caselaw recognizes the different

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situatedness of pretrial detainees and prisoners, that is irrelevant here. Kennedy expressly

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asserted in his amended complaint that he was transferred after he was convicted. (See

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ECF No. 21 at 123 (stating that “Plaintiff was transported to E.S.P. the same day that he

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3Kennedy

stresses that he should be given the opportunity to cross-examine NDOC
Defendant’s witnesses—particularly declarant Tasheena Sandoval. (E.g., ECF No. 115 at
5–6, 14–15; see also ECF No. 92-3.)
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was found guilty at his jury trial”).) 4 In evaluating Kennedy’s amended complaint, the

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Court’s screening order was also expressly grounded on that fact. (See ECF No. 24 at 14

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(“Because Plaintiff was convicted at the time he was transferred to ESP, the Court will

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review Plaintiff’s claims under the basis that he was convicted during his time at ESP.”).)

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Kennedy cannot now seek to overcome summary judgment by insisting—contrary to his

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own assertions—that he was a pretrial detainee when he was transferred to ESP and held

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in administrative segregation there.

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In light of the timing of Kennedy’s conviction and transfer, the Court finds that Judge

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Baldwin’s conclusion that Kennedy has no protected liberty interest to maintain the instant

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claim under the Due Process Clause is amply supported by caselaw. See, e.g., Sandin v.

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Conner, 515 U.S. 472, 478, 484, 486–87 (1995) (explaining that an inmate has no

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protected liberty interest related to prison officials’ actions, including segregation and

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transfer, that fall within “the normal limits or range of custody which the conviction has

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authorized the [s]tate to impose”); Meachum v. Fano, 427 U.S. 215, 225 (1976) (“Neither,

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in our view, does the Due Process Clause in and of itself protect a duly convicted prisoner

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against transfer from one institution to another within the state prison system.”); Serrano

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v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (citations omitted) (“Typically,

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administrative segregation in and of itself does not implicate a protected liberty interest.”);

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Resnick v. Hayes, 213 F.3d 443, 449 (9th Cir. 2000) (holding that the pre-sentencing

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prisoner had no liberty interest in being free from administrative segregation).

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While a state may create liberty interests, under Sandin and in this context, such

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interests are “generally limited to freedom from restraint which, while not exceeding the

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sentence in such an unexpected manner as to give rise to protection by the Due Process

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Clause of its own force, nonetheless imposes atypical and significant hardship on the

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inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 484 (internal citations

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4In

Bell v. Wolfish, the United States Supreme Court defined pretrial detainees as
“those persons who have been charged with a crime but who have not yet been tried on
the charge.” 441 U.S. 520, 523 (1979).
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omitted). In this regard, the Court also agrees with Judge Baldwin that Kennedy provides

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no evidence suggesting that he has been subjected to anything beyond typical

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administrative segregation (ECF No. 109 at 7). See, e.g., Freitas v. Ault, 109 F.3d 1335,

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1337 (8th Cir. 1997) (internal citation omitted) (“We believe that as a matter of law these

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conditions of [standard administrative segregation] do not constitute an ‘atypical and

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significant’ hardship, . . . when compared to the burdens of ordinary prison life.”). Further,

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Kennedy does not argue that Nevada law creates a liberty interest in non-consensual

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prison transfer requiring due process protection. Kennedy’s claim for violation of his

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procedural due process therefore fails because he has established no protected liberty

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interest here. Accordingly, the Court finds that NDOC Defendants are entitled to summary

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judgment on the single claim against them. 5

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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 issues before

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the Court.

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It is therefore ordered that the Report and Recommendation (ECF No. 109) is

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accepted and adopted in its entirety. The Court overrules Kevin Lee Kennedy’s Objection

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(ECF No. 115).

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It is further ordered that NDOC Defendants James Dzurenda and Williams Gittere’s
motion for summary judgment (ECF No. 92) is granted.
DATED THIS 23rd day of January 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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5The

Court need not consider NDOC Defendants’ other arguments (e.g., personal
participation and qualified immunity) (see ECF No. 92 at 6–8, 10–15).
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