Blandino v. Las Vegas Metro Police Department

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 KIM BLANDINO, 4 Plaintiff, Case No.: 2:22-cv-00562-GMN-EJY 5 vs. ORDER DENYING MOTION TO 6 AMEND AND GRANTING LAS VEGAS METROPOLITAN POLICE 7 DEPARTMENT, et al., DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

8 Defendants. 9 10 Pending before the Court are Cross-Motions for Summary Judgment filed by Plaintiff 11 Kim Blandino, (ECF Nos. 105, 65), and Defendant LVMPD, (ECF No. 103). The parties filed 12 Reponses and Replies, (ECF Nos. 69, 72, 108, 110, 114, 119). Further pending before the 13 Court are two Objections to the Magistrate Judge’s orders, (ECF Nos. 68, 94), a Motion for 14 Sanctions, (ECF No. 78), a Motion to Substitute Names for Doe Defendants, (ECF No. 87), a 15 Motion for Leave to File a Second Amended Complaint, (ECF No. 106), two Motions to 16 Correct Clerical Errors, (ECF Nos. 111, 125), a Motion for Judicial Notice, (ECF No. 112), and 17 a Motion to Request Transcript, (ECF No. 126), all filed by Plaintiff. Defendant also filed a 18 Motion for Leave, (ECF No. 74). 19 For the reasons discussed below, the Court GRANTS Defendant’s Motion for Summary 20 Judgment and DENIES Plaintiff’s Motions for Summary Judgment. The Court also DENIES 21 Plaintiff’s Objections, Motion for Sanctions, and Motion for Leave to File a Second Amended 22 Complaint. The Court DENIES as moot Plaintiff’s Motion to Substitute,1 first Motion to 23 Correct Clerical Errors, Motion for Judicial Notice, and Motion to Request Transcript. 24

25 1 Because this Order finds that Plaintiff’s First Amendment right was not violated, his Motion to Substitute the Doe Defendants with the names of the other Officers on duty at the time is MOOT. 1 Defendant’s Motion for Leave and Plaintiff’s Second Motion to Correct Clerical Errors are 2 GRANTED. 3 I. BACKGROUND 4 This case arises from an incident occurring while Plaintiff Kim Blandino was detained at 5 Clark County Detention Center, (“CCDC”), from April 3 to April 5, 2020. (See generally First 6 Amended Compl. (“FAC”), ECF No. 38). Plaintiff was arrested and booked into CCDC in 7 May 2019, and spent the next few months bouncing between house arrest and detention. 8 (Booking Voucher, Ex. C to Def.’s Mot. Summ. J. (“MSJ”), ECF No. 103-3); (LVJC Docket, 9 Ex. B to Def.’s MSJ, ECF No. 103-2); (House Arrest Letters, Exs. D–F to Def.’s MSJ, ECF 10 Nos. 103-4, 103-5, 103-6). Plaintiff was found competent at a hearing on April 3, 2020, and 11 was set to be released back to house arrest. (4/3/2020 Min., Ex. L to Def.’s MSJ, ECF No. 103- 12 12). 13 Plaintiff alleges that the morning of April 3, he told a nurse she was “impatient and rude 14 in accord with [his] free speech and religious practice,” and was subsequently locked down in 15 his cell for 48 hours. (FAC at 24); (Pl.’s MSJ at 7, ECF No. 65). The parties dispute whether

16 Blandino received a lockdown, but generally agree on what occurred before the alleged 17 lockdown. Plaintiff received breakfast in his cell, and approximately 20 minutes later, Nurse 18 Alexis provided his medication. (Module Log, Ex. R to Def.’s MSJ, ECF No. 103-18). At 7:30 19 a.m., Plaintiff submitted a Medical Request stating, “I am being punished because I objected to 20 being given Levthyroczine within 30 minutes of eating,” and that the nurse made him choose 21 between not taking the medication or taking it at the improper time. (4/3/2020 Medical 22 Request, Ex. S to Def.’s MSJ, ECF No. 103-19). He also writes that she accused him of having 23 an attitude. (Id.). Three hours later, he appeared at a hearing in which it was ordered that he 24 would be returned to house arrest. (4/3/2020 Min., Ex. T to Def.’s MSJ, ECF No. 103-20). The 25 next morning, LVMPD employee Rachelle Williams, formerly known as Rachelle Bruner, 1 visited Plaintiff to interview him prior to his transition to house arrest. (Visit History, Ex. V to 2 Def.’s MSJ, ECF No. 103-22); (Williams Decl. ¶ 6, Ex. W to Def.’s MSJ, ECF No. 103-23). 3 He was released to house arrest on April 5, 2020, around 11:40 a.m. (Housing Log, Ex. M to 4 Def.’s MSJ, ECF No. 103-13). 5 After the Court granted two motions to dismiss, the only remaining claim in this case is 6 for First Amendment Retaliation against LVMPD. (See Order Granting Second Mot. Dismiss 7 7:9–10). The parties filed cross motions for summary judgment on this remaining claim. 8 II. LEGAL STANDARD 9 The Federal Rules of Civil Procedure provide for summary adjudication when the 10 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 11 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 12 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 13 may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 14 (1986). A dispute as to a material fact is genuine if there is a sufficient evidentiary basis on 15 which a reasonable fact-finder could rely to find for the nonmoving party. See id. “The amount

16 of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or 17 judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 18 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 19 288–89 (1968)). “Summary judgment is inappropriate if reasonable jurors, drawing all 20 inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s 21 favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008). A principal 22 purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” 23 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 24 In determining summary judgment, a court applies a burden-shifting analysis. “When 25 the party moving for summary judgment would bear the burden of proof at trial, it must come 1 forward with evidence which would entitle it to a directed verdict if the evidence went 2 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 3 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 4 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (quotation marks and 5 citation omitted). In contrast, when the nonmoving party bears the burden of proving the claim 6 or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to 7 negate an essential element of the nonmoving party’s case; or (2) by demonstrating that the 8 nonmoving party failed to make a showing sufficient to establish an element essential to that 9 party’s case on which that party will bear the burden of proof at trial. See Celotex Corp., 477 10 U.S. at 323–24. If the moving party fails to meet its initial burden, summary judgment must be 11 denied, and the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. 12 Kress & Co., 398 U.S. 144, 159–60 (1970). 13 If the moving party satisfies its initial burden, the burden then shifts to the opposing 14 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 15 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute,

16 the opposing party need not establish a material issue of fact conclusively in its favor. It is 17 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 18 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 19 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). However, the nonmoving party “may not rely on 20 denials in the pleadings but must produce specific evidence, through affidavits or admissible 21 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 22 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 23 doubt as to the material facts,” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002). “The 24 mere existence of a scintilla of evidence in support of the plaintiff’s position will be 25 insufficient.” Anderson, 477 U.S. at 252. In other words, the nonmoving party cannot avoid 1 summary judgment by “relying solely on conclusory allegations unsupported by factual data.” 2 See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go 3 beyond the assertions and allegations of the pleadings and set forth specific facts by producing 4 competent evidence that shows a genuine issue for trial. See Celotex Corp., 477 U.S. at 324. 5 At summary judgment, a court’s function is not to weigh the evidence and determine the 6 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 7 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 8 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 9 not significantly probative, summary judgment may be granted. See id. at 249–50. 10 III. DISCUSSION 11 Before the Court resolves the cross-motions for summary judgment, it will evaluate 12 whether Plaintiff should be given leave to file a Second Amended Complaint bringing new 13 claims and defendants into this case. 14 A. Motion for Leave to File Second Amended Complaint 15 After Defendant filed its Motion for Summary Judgment, Plaintiff filed a Motion for

16 Leave to File a Second Amended Complaint, (“SAC”), in September 2024. (See generally Mot. 17 Leave, ECF No. 106). On April 5, 2024, this Court granted Defendant’s Second Motion to 18 Dismiss. (Order Granting Second Mot. Dismiss, ECF No. 55). The Order noted that Plaintiff 19 had added new causes of action and defendants without seeking leave to amend, so the Court 20 dismissed the new causes of action and instructed Plaintiff to seek leave to amend if he wished 21 to add new claims. (Id. 6:14–7:7). Five months later, Plaintiff is seeking to amend his 22 Complaint to add the new claims. (Mot. Leave at 2–3). 23 He states that because the statute of limitations on his new claims would soon expire, he 24 filed his proposed SAC under another case number. (Id. at 2). Plaintiff’s SAC primarily 25 proposes the addition of new claims and defendants for events that occurred in September and 1 October 2022, after this case was filed but before Plaintiff filed his First Amended Complaint. 2 (See generally Mot. Leave). His third claim concerns the retaliation incident in this case, but 3 adds new defendants Abell, Cardenas, Fernandez, Poloa, and Armendariz, because they aided 4 in his 48-hour lockdown. (SAC at 26–31, Ex. 1 to Mot. Leave). 5 Discovery in this case closed on July 24, 2024, and the deadline to file dispositive 6 motions was August 30, 2024. (Min. Order, ECF No. 61). The previous scheduling order set 7 the deadline to amend the pleadings and add parties as 90 days before the discovery cut-off 8 date. (Scheduling Order, ECF No. 24). Because Plaintiff is moving to amend the SAC and add 9 parties after the expiration of the Court’s deadline, his request is treated as a motion seeking to 10 amend the scheduling order and implicates the “good cause” standard from Rule 16(b) of the 11 Federal Rules of Civil Procedure. See D.S. v. Clark Cnty. Sch. Dist., No. 2:22-cv-00246-JCM- 12 NJK, 2023 WL 5748720, at *2 (D. Nev. May 22, 2023); Johnson v. Mammoth Recreations, 13 Inc., 975 F.2d 604, 608 (9th Cir. 1992). “Rule 16(b)’s ‘good cause’ standard primarily 14 considers the diligence of the party seeking the amendment.” Johnson, 975 F.2d at 609. 15 Although prejudice to the opposing party may also be considered, the focus of the inquiry is on

16 the movant’s reasons for seeking modification. Id. “If that party was not diligent, the inquiry 17 should end.” Id. The party seeking amendment bears the burden of establishing diligence. See 18 Singer v. Las Vegas Athletic Clubs, 376 F. Supp. 3d 1062, 1077 (D. Nev. 2019). 19 Because Plaintiff’s Motion for Leave was filed two months after the close of discovery, 20 and the deadline to amend pleadings was three months before the close of discovery, he also 21 has the burden of demonstrating excusable neglect. See Branch Banking & Trust Co. v. DMSI, 22 LLC, 871 F.3d 751, 764–65 (9th Cir. 2017); see also Local Rule 26-3. The excusable neglect 23 analysis is guided by factors that include (1) the danger of prejudice to the opposing party; (2) 24 the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; 25 and (4) whether the movant acted in good faith. Branch Banking, 871 F.3d at 765. 1 1. Plaintiff’s Objections to the Magistrate Judge’s Denial of his Motions to Stay 2 Plaintiff argues that because he has pending objections to the Magistrate Judge’s denial 3 of his motions to stay discovery, “discovery is not actually closed.” (Reply to Mot. Leave at 2, 4 ECF No. 120). But Plaintiff fails to cite case law for this proposition, and in fact, “[i]t is well- 5 established law that the filing of an objection to a magistrate judge’s order on a non-dispositive 6 motion does not automatically stay that order’s operation.” Castelan-Gutierrez v. Bodega 7 Latina Corp., No. 2:17-cv-01877-JAD-NJK, 2018 WL 4050493, at *1 (D. Nev. Mar. 30, 2018); 8 accord. Ignite Spirits, Inc. v. Consulting by AR, LLC, No. 2:21-cv-01590-JCM-EJY, 2022 WL 9 4112222, at *2 (D. Nev. Aug. 22, 2022); U.S. Commodity Futures Trading Comm’n v. Banc De 10 Binary, Ltd., No. 2:13-cv-992-MMD-VCF, 2015 WL 3454412, at *1 (D. Nev. June 1, 2015); 11 Garity v. Donahoe, No. 2:11-cv-01805-RFB-CWH, 2014 WL 4402499, at *2 (D. Nev. Sept. 5, 12 2014); Morales v. Allied Building Crafts, Inc., No. CV-S-04-1365-LRH-LRL, 2005 WL 13 8161664, at *2 (D. Nev. Oct. 6, 2005). “It is also axiomatic that the filing of a motion to stay 14 does not impact the obligation to proceed; only an order granting such relief imposes a stay.” 15 PlayUp, Inc. v. Mintas, 635 F. Supp. 3d 1087, 1093 (D. Nev. 2022). Thus, Plaintiff’s

16 objections did not stay discovery. 17 Furthermore, Plaintiff’s Objections fail to demonstrate that the Magistrate Judge’s 18 Orders denying his motions to stay discovery were clearly erroneous or contrary to law. See 19 Fed. R. Civ. P. 72(a); LR IB 3-1(a); 28 U.S.C. § 636(b)(1)(A); Laxalt v. McClatchy, 602 F. 20 Supp. 214, 216 (D. Nev. 1985). A magistrate judge’s order is “clearly erroneous” if the court 21 has “a definite and firm conviction that a mistake has been committed.” See United States v. 22 U.S. Gypsum Co., 333 U.S. 364, 395 (1948). “An order is contrary to law when it fails to apply 23 or misapplies relevant statutes, case law or rules of procedure.” UnitedHealth Grp., Inc. v. 24 United Healthcare, Inc., No. 2:14-cv-00224-RCJ, 2014 WL 4635882, at *1 (D. Nev. Sept. 16, 25 2014) (citation omitted). When reviewing the order, however, the magistrate judge “is afforded 1 broad discretion, which will be overruled only if abused.” Columbia Pictures, Inc. v. Bunnell, 2 245 F.R.D. 443, 446 (C.D. Cal. 2007) (citation omitted). 3 Plaintiff moved to stay discovery because he filed a Motion for Summary Judgment and 4 a Motion for Sanctions, which could be dispositive of the case. (First Mot. Stay, ECF No. 66); 5 (Second Mot. Stay, ECF No. 76). The Magistrate Judge applied the correct legal standard and 6 determined that his Motion for Summary Judgment was not likely to succeed. (First Order 7 Denying Stay 2:8–10, ECF No. 67). And in the second Order, the Magistrate Judge noted that 8 nothing had changed, and the Plaintiff had not met his burden of establishing that a stay was 9 warranted. (Second Order Denying Stay 1:11–21, ECF No. 84). Because the Magistrate Judge 10 did not fail to apply to relevant case law, and Plaintiff did not establish that a definite error had 11 been committed, the district judge “may not simply substitute its judgment” for that of the 12 magistrate judge. Grimes v. City and Cnty. of San Francisco, 951 F.2d 236, 241 (9th Cir. 13 1991). Plaintiff’s Objections are therefore DENIED, and the Court will move on to evaluating 14 whether Plaintiff has met his burden of demonstrating diligence and excusable neglect. 15 2. Diligence

16 Plaintiff has failed to meet his burden of demonstrating diligence. To determine 17 diligence, courts examine the time between the moving party’s discovery of new facts and its 18 asking leave of the court to file an amended pleading. See, e.g., Zivkovic v. S. Cal. Edison Co., 19 302 F.3d 1080, 1087–88 (9th Cir. 2002); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294– 20 95 (9th Cir. 2000). The events underlying the new facts occurred in September and October of 21 2022, yet Plaintiff’s instant motion was filed two years later. Plaintiff is correct that his FAC 22 sought to add similar claims based on the 2022 events, but the Court dismissed them because he 23 did not request leave to amend his FAC with new claims or defendants. (See Order Granting 24 Second Mot. Dismiss 7:1–7). However, Plaintiff inexplicably waited another five months after 25 the Court’s April order to request leave to amend. Moreover, in the same Order, the Court 1 warned Plaintiff that he should not move to supplement with a “separate, distinct and new 2 cause of action,” which is what he is attempting to do by adding claims based on a traffic stop 3 in September of 2022 and time spent at Clark County Detention Center in September and 4 October 2022. (Id. 6:20–23) (quoting Planned Parenthood of S. Arizona v. Neely, 130 F.3d 400, 5 402 (9th Cir. 1997)).2 Plaintiff has therefore not demonstrated diligence in requesting leave to 6 amend. 7 3. Excusable Neglect 8 Even if Plaintiff had demonstrated diligence, he has not shown excusable neglect. 9 Beginning with the first factor, the Court finds prejudice to Defendant if Plaintiff is allowed to 10 expand the current case to include his new claims, because the current case consists of only one 11 remaining claim of retaliation based on an event during his detention in April 2020. “A need to 12 reopen discovery and therefore delay proceedings supports a district court’s finding of 13 prejudice from a delayed motion to amend the complaint.” Coleman v. Quaker Oats Co., 232 14 F.3d 1271, 1295 (9th Cir. 2000) (quoting Lockheed Martin Corp. v. Network Sols., Inc., 194 15 F.3d 980, 986 (9th Cir. 1999). Discovery would have to be reopened if the Court granted

16 Plaintiff’s motion, and doing so would bring this case back to an early stage of proceedings 17 while motions for summary judgment are pending. “Courts are less inclined to grant a motion 18 for leave to amend that is filed while a motion for summary judgment is pending.” Rocky 19 Mountain Biologicals, Inc. v. Microbix Biosystems, Inc., 986 F. Supp. 2d 1187, 1204 (D. Mont. 20 2013). Thus, prejudice, the length of delay, and potential impact on the proceedings all weigh 21 against finding excusable neglect. 22 Plaintiff replies that because he is pro se, he requires additional time to review case law. 23 (Reply to Mot. Leave at 6). He also submits that the did not know Officers Cardenas and Abell 24 25 2 Allowing amendment as to Plaintiff’s third SAC claim adding defendants Abell, Cardenas, Fernandez, Poloa, and Armendariz, would be futile. As explained below in Section B, the addition of these defendants does not change the Court’s analysis or decision on summary judgment. 1 were on duty until July 13, 2024, and that he timely amended his previous complaints when 2 granted leave to do so. (Id. at 6–7). But Plaintiff could have filed a Motion for Leave to 3 Supplement at any time after the 2022 events occurred, and he did not need to wait for the 4 Court’s ruling on pending motions to dismiss. And while the Court is sympathetic that pro se 5 plaintiffs require additional time to work on their claims and review case law, that does not 6 explain why Plaintiff waited an additional five months after the Court instructed him to file a 7 Motion to Supplement, to file the instant motion. 8 Lastly, the parties point out that Plaintiff has already filed this SAC under another case 9 number, 2:24-cv-01727-CDS-BNW, which indicates less prejudice to Plaintiff if his Motion for 10 Leave is denied. See Sharkey v. Duke, No. 2:23-cv-00449-CDS-DJA, 2024 WL 3875803, at *3 11 (D. Nev. Aug. 19, 2024) (denying a plaintiff’s motion to amend where “Plaintiff has filed a 12 new complaint alleging the claims he seeks to add here.”). Judge Silva ordered Plaintiff to 13 show cause as to why his new case should not be dismissed as duplicative of this case, and 14 Plaintiff responded that he added new claims with a 2024 statute of limitations. For the reasons 15 above, and because Plaintiff failed to demonstrate good cause and excusable neglect for filing

16 his Motion for Leave months after the deadline, the Court DENIES the motion. 17 B. Motion for Sanctions 18 Next, Plaintiff moves for Rule 11 sanctions based on two assertions made by the 19 LVMPD in their Response to his Motion for Summary Judgment. (Mot. Sanctions at 1, ECF 20 No. 78). First, he asserts that counsel Ryan Daniels committed perjury in his declaration 21 because he wrote that “LVMPD had not had the opportunity to scrutinize [Plaintiff’s] evidence 22 through written discovery or deposition.” (Id. at 2). Plaintiff argues that he had not received a 23 call from LVMPD counsel stating that they wished to review the log he created while at CCDC, 24 and that LVMPD had multiple opportunities to depose him. (Id. at 3–4). Second, Plaintiff takes 25 issue with the Response brief noting “it is nearly impossible that Blandino was locked down for 1 48 hours . . . because on April 4, 2022, at 9:51 a.m., he received a visitor. (Id. at 4). Plaintiff 2 points out that the visitor was, in fact, an LVMPD employee. (Id. at 5). He requests judgment 3 be entered in his favor. (Id. at 10). 4 LVMPD filed a Motion for Leave to file a Sur-reply addressing Plaintiff’s assertion that 5 it made fraudulent statements, (ECF No. 74), which the Court GRANTS. First, LVMPD argues 6 that Daniels’ statement was not fraud because Plaintiff has no way to determining whether 7 LVMPD had the opportunity to properly scrutinize the evidence he improperly attached for the 8 first time to his Motion for Summary Judgment, and because Rule 37(c)(1)’s self-executing 9 sanction meant they did not have to take the opportunity. (Sur-Reply 2:12–20). And second, it 10 was not fraudulent to state that Plaintiff received a visitor when an LVMPD employee visited 11 him on April 4. (Id. 2:21–24). The Court agrees that neither of these representations require 12 sanctions and DENIES Plaintiff’s motion. 13 C. Cross Motions for Summary Judgment 14 Because Plaintiff’s Motion to Amend has been denied, the only remaining claim in this 15 case is for retaliation against LVMPD. Plaintiff alleges that LVMPD failed to maintain policies

16 or provide training that would prevent employees from retaliating against him for exercising his 17 rights to free speech and religion. (FAC ¶ 54). The Court begins with Defendant’s Motion for 18 Summary Judgment. 19 “[M]unicipalities may be liable under § 1983 for constitutional injuries pursuant to 20 (1) an official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or 21 discipline; or (4) a decision or act by a final policymaker.” Horton by Horton v. City of Santa 22 Maria, 915 F.3d 592, 602–03 (9th Cir. 2019). Further, Plaintiff must establish “(1) that [he] 23 possessed a constitutional right of which he was deprived; (2) that [LVMPD] had a policy; (3) 24 that this policy ‘amounts to deliberate indifference’ to [Blandino’s] constitutional right; and 25 1 (4) that the policy is the ‘moving force behind the constitutional violation.’” Van Ort v. Estate 2 of Stanewich, 92 F.3d 831, 835 (9th Cir. 1996) (alteration in original). 3 Plaintiff alleges that his First Amendment rights were violated when he was locked 4 down due to his statement to the nurse that she was “impatient and rude.” There is no genuine 5 dispute about the statement Plaintiff made to his LVMPD nurse, and thus the Court must 6 determine whether, as a matter of law, his conduct was protected. To demonstrate retaliation in 7 violation of the First Amendment in the prison context, a plaintiff must show “(1) an assertion 8 that a state actor took some adverse action against an inmate, (2) because of (3) that prisoner’s 9 protected conduct, and that such action (4) chilled the inmate’s exercise of his First 10 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional 11 goal.” Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (citing Rhodes v. Robinson, 408 12 F.3d 559, 567–68 (9th Cir. 2005)). Because the Court finds that Plaintiff did not engage in 13 protected conduct, it does not reach Defendant’s other arguments, such as that Plaintiff was 14 never actually placed in a 48-hour lockdown. 15 Defendant argues that Plaintiff’s claim fails because he was not deprived of a

16 constitutional right. (Def.’s MSJ 9:21–12:14). It contends that while some speech is protected 17 in the prison context, such as filing grievances, other interactions between prison staff and 18 those who are incarcerated, such as “put-downs” and “verbal challenges or rantings,” are not. 19 (Id. 9:21–11:19). Defendant further asserts that Plaintiff’s statement to the nurse was a level 1 20 rule violation at CCDC because it is “[v]erbally abusive or disrespectful towards staff or other 21 inmates.” (Id. 11:20–22) (citing CCDC Policies at 18, Ex. N to Def.’s MSJ, ECF No. 103-14). 22 In his Response, Plaintiff asserts that Defendant is “estopped and precluded” from 23 making the argument that his speech was not protected, because the Court found that his claim 24 survived Defendant’s Motion to Dismiss. (Resp. to Def.’s MSJ at 5, ECF No. 110). And citing 25 Brodheim, he contends that “disrespectful language is itself protected activity under the First 1 Amendment.” (Id.). Finally, he argues that he was not being disrespectful, but rather 2 “respectfully disagreeing with rudeness and impatience with Christian love to strike the 3 conscience.” (Id.). 4 To address Plaintiff’s first argument, surviving a motion to dismiss does not mean that 5 Defendant cannot raise this argument at the motion for summary judgment stage. See, e.g., 6 Peck v. Hinchey, 2017 WL 2929464, *5 n.5 (D. Ariz. 2017) (“Plaintiffs misapply the ‘law of 7 the case’ doctrine by arguing that this Court’s analysis under the motion to dismiss standard 8 must result in the same outcome at the summary judgment stage. The denial of motions to 9 dismiss do not constitute law of the case for the purpose of summary judgment.”). Further, 10 Defendant LVMPD did not make protected speech argument at the motion to dismiss stage, but 11 rather argued that his retaliation claim was untimely. (See generally First Mot. Dismiss, ECF 12 No. 9). Because Defendant has not yet made the argument that Plaintiff’s speech is not 13 protected, the Court has not yet ruled on it. Thus, while the Court is bound to its decision that 14 Plaintiff plausibly and timely alleged a retaliation claim, before discovery commenced, the 15 Court did not decide the merits of his claim. See Andrews Farms v. Calcot, Ltd., 693 F. Supp.

16 2d 1154, 1166 (E.D. Cal. 2010) (“A denial of a motion to dismiss establishes only that the 17 claims are plausible; it does not establish the merits of the claim.”). 18 The Court now moves on to addressing the Ninth Circuit’s Brodheim decision, which 19 the Court cited in its previous Order finding the retaliation claim sufficiently pled. Plaintiff 20 argues that Brodheim stands for the proposition that all disrespectful language is protected, 21 (Resp. to Def.’s MSJ at 5), but the actual holding from the court is that “disrespectful language 22 in a prisoner’s grievance is itself protected activity under the First Amendment.” Brodheim, 23 584 F.3d at 1271. More recently, the Ninth Circuit has clarified that “the holding of Brodheim 24 relates only to the narrow category of cases dealing with prison grievances.” Richey v. Dahne, 25 733 F. App’x 881, 884 (9th Cir. 2018). “We reasoned that grievances were easy to insulate 1 from other prisoners and from those prison officials who are the target of the grievance, so that 2 disrespectful language in a grievance did not raise any substantial security concern.” Id. at 883. 3 In this case, Plaintiff’s comment to his nurse that she was “impatient and rude,” was not 4 included in a written grievance, or in his medical request form, but said to her directly. And 5 LVMPD cited many cases, both in this district and beyond, in which courts have found that 6 verbal confrontations and put-downs by inmates are not protected when they are not an attempt 7 to assert a prison grievance. (Def.’s MSJ 10:19–11:19) (citing cases). The Court has reviewed 8 these cases and finds them persuasive. See also Rodriguez v. Eulers, 2020 WL 7388162, at *2 9 (E.D. Cal. Dec. 16, 2020) (“While the First Amendment protects inmates from being retaliated 10 against for protected conduct such as filing administrative appeals, it does not offer protection 11 for hurling insults at correctional officers.”); Ruiz v. Woodfill, 2020 WL 3254136, at *4 (E.D. 12 Cal. June 16, 2020) (“[V]erbal insults are not protected under the First Amendment.”). The 13 Court thus GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s 14 Motion for Summary Judgment. 15 IV. CONCLUSION

16 IT IS HEREBY ORDERED that Defendant’s Motion for Summary Judgment, (ECF 17 No. 103), is GRANTED. The Court kindly directs the Clerk of Court to close the case and 18 enter judgment for Defendant. 19 IT IS FURTHER ORDERED that Plaintiff’s Motions for Summary Judgment, (ECF 20 Nos. 105, 65), are DENIED. 21 IT IS FURTHER ORDERED that Plaintiff’s Objections, (ECF Nos. 68, 94), Motion 22 for Sanctions, (ECF No. 78), and Motion for Leave, (ECF No. 106), are DENIED. 23 IT IS FURTHER ORDERED that Plaintiff’s Motion to Substitute, (ECF No. 87), first 24 Motion to Correct Clerical Error, (ECF No. 111), and Motion to Request Transcript, (ECF No. 25 126), are DENIED as moot. 1 IT IS FURTHER ORDERED that Plaintiff?s Second Motion to Correct Clerical Error 2 |}is GRANTED. The Clerk of Court is kindly requested to remove the “Esq.” designation from 3 || Plaintiff's name on the docket entry at ECF No. 123. 4 IT IS FURTHER ORDERED that Defendant’s Motion to Leave, (ECF No. 74), is 5 || GRANTED. 6 DATED this 9 _ day of December, 2024. 7 Ly, Yj,

9 Gloria Navarro, District Judge UNITIED/STATES DISTRICT COURT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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