3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 ASHENAFI G. ABERHA, Case No. 3:19-cv-00606-MMD-WGC
7 Plaintiff, ORDER v. 8 DIRECTOR NEVADA DEPT OF 9 CORRECTIONS, et al.,
10 Defendants.
11 12 I. SUMMARY 13 Pro se Plaintiff Ashenafi G. Aberha, who is incarcerated in the custody of the 14 Nevada Department of Corrections (“NDOC”), brings this action under 42 U.S.C. § 1983. 15 Before the Court is United States Magistrate Judge William G. Cobb’s Report and 16 Recommendation (“R&R”), recommending that the Court grant Defendant Eric 17 Delafontaine’s motion for summary judgment (ECF No. 37) and dismiss the Doe 18 Defendant without prejudice.1 (ECF No. 54.) Plaintiff timely filed an objection (ECF No. 19 55 (“Objection”)) to the granting of summary judgment, and Defendant responded (ECF 20 No. 57). As further explained below, the Court sustains Plaintiff’s Objection in part and 21 will deny summary judgment.2 22 /// 23 /// 24 25 1The R&R correctly found that Plaintiff failed to timely seek to amend the complaint 26 to add the Doe Defendant as a party. (ECF No. 54 at 4-5.) The Court thus overrules Plaintiff’s objection to the dismissal and adopts the recommendation to dismiss Doe 27 Defendant without prejudice.
28 2Plaintiff’s Objection challenges Judge Cobb’s evidentiary rulings. The Court declines to address these arguments because the Court rejects Judge Cobb’s 2 The Court incorporates by reference and adopts Judge Cobb’s recitation of 3 Plaintiff’s allegations provided in the R&R. (ECF No. 54 at 1-2.) After the screening of the 4 Complaint, the Court permitted Plaintiff to proceed on a single claim of failure to protect 5 in violation of the Eighth Amendment against Defendant and a Doe officer. (ECF No. 11.) 6 III. LEGAL STANDARD 7 A. Review of Magistrate Judge’s Recommendation 8 This Court “may accept, reject, or modify, in whole or in part, the findings or 9 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 10 timely objects to a magistrate judge’s report and recommendation, the Court is required 11 to “make a de novo determination of those portions of the [report and recommendation] 12 to which objection is made.” Id. The Court’s review is thus de novo because Plaintiff filed 13 his Objection. (ECF No. 55.) 14 B. Summary Judgment Standard 15 “The purpose of summary judgment is to avoid unnecessary trials when there is no 16 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 17 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is appropriate 18 when the pleadings, the discovery and disclosure materials on file, and any affidavits 19 “show there is no genuine issue as to any material fact and that the movant is entitled to 20 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue 21 is “genuine” if there is a sufficient evidentiary basis on which a reasonable factfinder could 22 find for the nonmoving party and a dispute is “material” if it could affect the outcome of 23 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 24 (1986). Where reasonable minds could differ on the material facts at issue, however, 25 summary judgment is not appropriate. See id. at 250-51. “The amount of evidence 26 necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 27 resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 28 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 2 draws all inferences in the light most favorable to the nonmoving party. See Kaiser 3 Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) (citation 4 omitted). 5 The moving party bears the burden of showing that there are no genuine issues of 6 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 7 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 8 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 9 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 10 but must produce specific evidence, through affidavits or admissible discovery material, 11 to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 12 1991), and “must do more than simply show that there is some metaphysical doubt as to 13 the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting 14 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 15 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient[.]” 16 Anderson, 477 U.S. at 252. 17 IV. DISCUSSION 18 Judge Cobb recommends granting summary judgment because undisputed 19 evidence supports Defendant’s argument that Plaintiff cannot satisfy the subjective prong 20 of his claim3—that Defendant was not aware that Plaintiff faced a substantial risk of harm 21 by keeping Plaintiff in the cell with his cellmate, Booker, who Plaintiff complained later 22 choked and raped him. (ECF No. 54 at 11-13.) The Court disagrees with the finding that 23 the facts are undisputed and therefore rejects Judge Cobb’s recommendation to grant 24 summary judgment. 25 In support of his motion, Defendant stated in his declaration that Plaintiff told him 26 3This subjective prong requires a plaintiff to show that “the official [knew] of and 27 disregard[ed] an excessive risk to inmate . . . safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm 28 exists, and [the official] must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 2 1 at 3.) Defendant denied that Plaintiff ever indicated that he “had been sexually assaulted 3 by inmate Booker.” (Id.) Judge Cobb found that although Plaintiff argued that Defendant’s 4 declaration is false, he does not offer any evidence to dispute these statements. (ECF 5 No. 54 at 11-12.) However, Plaintiff asserts in his verified Complaint that on September 6 20, 2018, Booker sexually assaulted Plaintiff three times while Plaintiff was in the cell with 7 him, and he reported the first incident to Defendant, but Defendant made fun of Plaintiff.4 8 (ECF No. 5 at 4.) Courts must consider a pro se party’s contentions offered in motions 9 and pleadings as evidence in his opposition to the motion for summary judgment “where 10 such contentions are based on personal knowledge and set forth facts that would be 11 admissible in evidence, and where [he] attested under penalty of perjury that the contents 12 of the motions or pleadings are true and correct.” Jones v.
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 ASHENAFI G. ABERHA, Case No. 3:19-cv-00606-MMD-WGC
7 Plaintiff, ORDER v. 8 DIRECTOR NEVADA DEPT OF 9 CORRECTIONS, et al.,
10 Defendants.
11 12 I. SUMMARY 13 Pro se Plaintiff Ashenafi G. Aberha, who is incarcerated in the custody of the 14 Nevada Department of Corrections (“NDOC”), brings this action under 42 U.S.C. § 1983. 15 Before the Court is United States Magistrate Judge William G. Cobb’s Report and 16 Recommendation (“R&R”), recommending that the Court grant Defendant Eric 17 Delafontaine’s motion for summary judgment (ECF No. 37) and dismiss the Doe 18 Defendant without prejudice.1 (ECF No. 54.) Plaintiff timely filed an objection (ECF No. 19 55 (“Objection”)) to the granting of summary judgment, and Defendant responded (ECF 20 No. 57). As further explained below, the Court sustains Plaintiff’s Objection in part and 21 will deny summary judgment.2 22 /// 23 /// 24 25 1The R&R correctly found that Plaintiff failed to timely seek to amend the complaint 26 to add the Doe Defendant as a party. (ECF No. 54 at 4-5.) The Court thus overrules Plaintiff’s objection to the dismissal and adopts the recommendation to dismiss Doe 27 Defendant without prejudice.
28 2Plaintiff’s Objection challenges Judge Cobb’s evidentiary rulings. The Court declines to address these arguments because the Court rejects Judge Cobb’s 2 The Court incorporates by reference and adopts Judge Cobb’s recitation of 3 Plaintiff’s allegations provided in the R&R. (ECF No. 54 at 1-2.) After the screening of the 4 Complaint, the Court permitted Plaintiff to proceed on a single claim of failure to protect 5 in violation of the Eighth Amendment against Defendant and a Doe officer. (ECF No. 11.) 6 III. LEGAL STANDARD 7 A. Review of Magistrate Judge’s Recommendation 8 This Court “may accept, reject, or modify, in whole or in part, the findings or 9 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 10 timely objects to a magistrate judge’s report and recommendation, the Court is required 11 to “make a de novo determination of those portions of the [report and recommendation] 12 to which objection is made.” Id. The Court’s review is thus de novo because Plaintiff filed 13 his Objection. (ECF No. 55.) 14 B. Summary Judgment Standard 15 “The purpose of summary judgment is to avoid unnecessary trials when there is no 16 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 17 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is appropriate 18 when the pleadings, the discovery and disclosure materials on file, and any affidavits 19 “show there is no genuine issue as to any material fact and that the movant is entitled to 20 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue 21 is “genuine” if there is a sufficient evidentiary basis on which a reasonable factfinder could 22 find for the nonmoving party and a dispute is “material” if it could affect the outcome of 23 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 24 (1986). Where reasonable minds could differ on the material facts at issue, however, 25 summary judgment is not appropriate. See id. at 250-51. “The amount of evidence 26 necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 27 resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 28 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 2 draws all inferences in the light most favorable to the nonmoving party. See Kaiser 3 Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986) (citation 4 omitted). 5 The moving party bears the burden of showing that there are no genuine issues of 6 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 7 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 8 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 9 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 10 but must produce specific evidence, through affidavits or admissible discovery material, 11 to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 12 1991), and “must do more than simply show that there is some metaphysical doubt as to 13 the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting 14 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 15 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient[.]” 16 Anderson, 477 U.S. at 252. 17 IV. DISCUSSION 18 Judge Cobb recommends granting summary judgment because undisputed 19 evidence supports Defendant’s argument that Plaintiff cannot satisfy the subjective prong 20 of his claim3—that Defendant was not aware that Plaintiff faced a substantial risk of harm 21 by keeping Plaintiff in the cell with his cellmate, Booker, who Plaintiff complained later 22 choked and raped him. (ECF No. 54 at 11-13.) The Court disagrees with the finding that 23 the facts are undisputed and therefore rejects Judge Cobb’s recommendation to grant 24 summary judgment. 25 In support of his motion, Defendant stated in his declaration that Plaintiff told him 26 3This subjective prong requires a plaintiff to show that “the official [knew] of and 27 disregard[ed] an excessive risk to inmate . . . safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm 28 exists, and [the official] must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 2 1 at 3.) Defendant denied that Plaintiff ever indicated that he “had been sexually assaulted 3 by inmate Booker.” (Id.) Judge Cobb found that although Plaintiff argued that Defendant’s 4 declaration is false, he does not offer any evidence to dispute these statements. (ECF 5 No. 54 at 11-12.) However, Plaintiff asserts in his verified Complaint that on September 6 20, 2018, Booker sexually assaulted Plaintiff three times while Plaintiff was in the cell with 7 him, and he reported the first incident to Defendant, but Defendant made fun of Plaintiff.4 8 (ECF No. 5 at 4.) Courts must consider a pro se party’s contentions offered in motions 9 and pleadings as evidence in his opposition to the motion for summary judgment “where 10 such contentions are based on personal knowledge and set forth facts that would be 11 admissible in evidence, and where [he] attested under penalty of perjury that the contents 12 of the motions or pleadings are true and correct.” Jones v. Blanas, 393 F.3d 918, 923 (9th 13 Cir. 2004); see also Richardson v. Reno Police Dep’t, Case No. 3:17-cv-00383-MMD- 14 WGC, 2020 WL 907561, at *2 (D. Nev. Feb. 24, 2020) (noting that a pro se plaintiff “may 15 rely on his own verified statements to create a factual dispute”). Plaintiff’s Complaint is 16 verified, and he attested to the allegations in his Complaint under penalty of perjury. (ECF 17 No. 5 at 9.) Viewed in the light most favorable to Plaintiff and drawing all reasonable 18 inferences in his favor, Plaintiff’s sworn allegations create a genuine issue of material fact 19 as to whether Defendant was aware of a substantial risk of harm to Plaintiff, from his 20 continued sharing of the cell with Booker. See Celotex Corp., 477 U.S. at 322; Kaiser 21 Cement Corp., 793 F.2d at 1103. A rational jury could reasonably find that Defendant 22 knew of a serious risk of harm to Plaintiff because of Plaintiff’s report that Booker had 23 raped him. (ECF No. 5 at 4.) See Anderson, 477 U.S. at 248-51. 24 Defendant alternatively argued that he is entitled to qualified immunity based on 25 the same contention that under the particular facts here, he had no notice of any risk of 26 27 4Plaintiff also repeated these statements in his Objection—he “reported to 28 Defendant that he had been sexually assaulted and the defendant made fun of him.” (ECF No. 55 at 2.) 1 || harm to Plaintiff.5 (ECF No. 37 at 10.) Defendant thus insisted that he did not violate any 2 || clearly established right.® (/d. at 11.) However, the Court again finds that the allegations 3 || of Plaintiff's report of rape to Defendant, as alleged in his verified Complaint, creates a 4 || material issue of fact that renders summary judgment on Defendant's qualified immunity 5 || defense inappropriate. 6 V. CONCLUSION 7 The Court notes that the parties made several arguments and cited to several 8 || cases not discussed above. The Court has reviewed these arguments and cases and 9 || determines that they do not warrant discussion as they do not affect the outcome of the 10 || issues before the Court. 11 It is therefore ordered that Plaintiff's objection (ECF No. 55) to the Report and 12 || Recommendation of U.S. Magistrate Judge William G. Cobb (ECF No. 54) is sustained 13 || in part and rejected in part. 14 It is further ordered that Defendant’s motion for summary judgment (ECF No. 37) 15 || is denied. 16 It is further ordered that the Doe Defendant is dismissed without prejudice. 17 DATED THIS 20" Day of January 2022.
19 SO MIRANDA M. DU 20 CHIEF UNITED STATES DISTRICT JUDGE 21 22 23 *Judge Cobb did not reach Defendant’s alternative argument because he found in favor of Defendant on liability. (ECF No. 54 at 12.) 24 6The Court conducts a two-step inquiry to determine whether Defendant is entitled 25 || to qualified immunity. See Groves v. City of Reno, Case No. 3:13-cv-00537-MMD-WGC, 2015 WL 5350099, at *4 (D. Nev. Sept. 14, 2015). First, the Court decides “whether the 26 || facts shown make out a violation of a constitutional right.” /d. If the Court finds a constitutional violation, the Court then decides “whether the constitutional right was 27 || clearly established as of the date of the alleged misconduct.” /d. (citations omitted). “The Supreme Court has instructed that district judges may use their discretion in deciding 28 || which qualified immunity prong to address first based on the circumstances of the case at issue.” /d. (citing Pearson v. Callahan, 555 U.S. 223 at 232, 236 (2009)). Defendant moved for summary judgment on the first prong. (ECF No. 37 at 10-11.)