2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 KEVIN BROOKS, Case No. 2:20-cv-00026-ART-EJY 5 Plaintiff, ORDER REGARDING DEFENDANT 6 v. RITZ’S PARTIAL MOTION FOR SUMMARY JUDGMENT (ECF NO. 35) 7 BRIAN WILLIAMS, et al., AND MOTION TO STAY (ECF NO. 37).
8 Defendants.
10 I. SUMMARY 11 Plaintiff Kevin Brooks (“Brooks”) is incarcerated in the custody of the Nevada 12 Department of Corrections (“NDOC”). Brooks brought this action pursuant to 42 13 U.S.C. § 1983 against warden Brian Williams, assistant warden J. Nash, and 14 caseworker Anthony Ritz after Brooks was fired from his job in the law library at 15 High Desert State Prison (“HDSP”). (First Amended Compl., ECF No. 11). Judge 16 Gordon screened Brooks’ First Amended Complaint (“FAC”) and dismissed 17 Defendants Williams and Nash with prejudice but allowed Brooks’ Equal 18 Protection claim to proceed against Defendant Ritz. (ECF No. 15 at 7). Before the 19 Court are Defendant Ritz’s Partial Motion for Summary Judgment (ECF No. 35) 20 and Motion to Stay Case (ECF No. 37). For the reasons explained in this order, 21 this Court grants Ritz’s Partial Motion for Summary Judgment, and denies his 22 Motion to Stay as moot. 23 II. BACKGROUND 24 Prior to May 2017, Brooks worked in the law library at HDSP. This work 25 assignment carried with it certain privileges that were reserved to inmates in the 26 HDSP workers’ unit. (ECF No. 11 at 4). The privileges included the ability to move 27 to certain locations within the prison without an escort, and all-day access to 28 1 prison amenities, including showers and telephones. (Id.). 2 On June 5, 2017 a member of prison staff and non-party, Ms. Murray, 3 allegedly found Brooks and another law library worker, Jack Seka (“Seka”), “going 4 to the same quad.” (ECF No. 35-2 at 2). On June 6, 2017, Defendant Ritz wrote 5 a case note that indicated Brooks had not been told to visit that quad on that day 6 and noted that Operational Procedure (“OP”) 720.02(1) allowed workers in the law 7 library to make visits to inmates who cannot access the library. (Id.). Ritz did not 8 believe Brooks and Seka had any reason to visit that particular area, as inmates 9 housed there had access to the law library twice a week. (Id.). The same day, a 10 Full Classification Committee (“FCC”) composed of Ritz and two other prison staff 11 members concluded that Brooks was “no longer appropriate for a law library 12 worker position and will be unassigned. . . .” (Id.). 13 Whether Brooks was suspended or fired from his job at the law library is 14 disputed. Brooks claims Ritz called him and Seka into a meeting and told them 15 they were being suspended from their jobs, but Ritz did not give a reason for their 16 suspension. (ECF No. 11 at 5). Brooks alleges he was never given a hearing or a 17 disciplinary write-up before or after the suspension, even though he was “level 18 reduced” twice—resulting in the loss of privileges and good time credits. (Id. at 5- 19 6). Defendant Ritz claims Brooks was not suspended but “removed” from his job 20 on June 6, 2017. (ECF No. 35 at 2). 21 On June 19, 2018, Brooks filed his first “informal” grievance in this matter 22 more than a year after his alleged suspension occurred. (ECF No. 35-3 at 1). 23 Brooks claimed that Defendant Ritz had violated his Fourteenth Amendment 24 rights by suspending him from his job without a hearing and preventing him from 25 being considered for at least five additional jobs, resulting in his loss of privileges 26 and good time credits. (Id. at 2-3). On July 6, 2018, the grievance coordinator 27 responded that the grievance was untimely. (Id.). Brooks signed for the grievance 28 on August 16, 2018 and noted that he disagreed with the determination. (Id.). 1 Also on August 16, 2018, Brooks appealed his “informal” grievance to the “first 2 level.” (Id. at 6). Brooks wrote that he “was not fired or wrote-up” but was 3 suspended and believed that the “suspension [was] still pending, to the best of 4 my knowledge.” (Id.). Brooks argued that his grievance could not be untimely 5 because the suspension was an ongoing condition. (Id.). This appeal was also 6 summarily denied as untimely on September 24, 2018, and Brooks signed for the 7 grievance on December 10, 2018. 8 At some point in late 2018 or early 2019, Brooks filed a third appeal to the 9 “second level.” (ECF No. 35 at 3). Original documentation for this third appeal is 10 missing from the record because it has “not yet been discovered” but a summary 11 of the relevant grievance is provided. (ECF Nos. 35 at 2 fn.1; 35-5). 12 The parties disagree about what happened next. Ritz claims that NDOC 13 responded to Brooks, advised him that NDOC will not respond to an improper 14 grievance that results in abuse of the grievance process, but provided Brooks the 15 opportunity to receive a “fully researched” response if Brooks resubmitted all of 16 his grievances and related documents. (ECF Nos. 35 at 3:4-7; 35-5 at 4). Ritz 17 claims Brooks did not resubmit the required documents to obtain a “fully 18 researched” response. (ECF No. 35 at 3:7-9). Brooks argues that he “does not 19 remember this memo” from NDOC in response to this third appeal and believes 20 it was never communicated to him. (ECF No. 39 at 6). The summary of the 21 grievance report indicates “inmate signed on 3/11/2019,” presumably for the 22 grievance memo at issue here, but it also includes a note from Brooks dated four 23 days later, on 3/15/2019, that indicates he believes he did not receive a response 24 “I have waited well over the requested 45 days . . . and I have still not received an 25 answer. . . .” (ECF No. 35-5 at 4). 26 On January 6, 2020, Brooks filed his initial Complaint in this action, which 27 was later amended. (ECF Nos. 1; 11). After mandatory screening this Court 28 allowed Brooks to proceed on one count of Fourteenth Amendment Equal 1 Protection violations against Defendant Ritz. (ECF No. 15). 2 Defendant Ritz argues that summary judgment should be granted in his favor 3 because Brooks failed to exhaust his administrative remedies and initiated this 4 action outside the statute of limitations for § 1983 actions. (ECF No. 35 at 3:18- 5 20). Because this Court finds that Brooks did not exhaust his administrative 6 remedies, it does not reach Ritz’s statute of limitations argument. 7 III. LEGAL STANDARD 8 A. Motion for Summary Judgment 9 “The purpose of summary judgment is to avoid unnecessary trials when there 10 is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t 11 of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary 12 judgment is appropriate when the pleadings, the discovery and disclosure 13 materials on file, and any affidavits “show there is no genuine issue as to any 14 material fact and that the movant is entitled to judgment as a matter of law.” 15 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there 16 is a sufficient evidentiary basis on which a reasonable fact-finder could find for 17 the nonmoving party and a dispute is “material” if it could affect the outcome of 18 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 19 248-49 (1986). Where reasonable minds could differ on the material facts at 20 issue, however, summary judgment is not appropriate. See id. at 250-51.
Free access — add to your briefcase to read the full text and ask questions with AI
2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 KEVIN BROOKS, Case No. 2:20-cv-00026-ART-EJY 5 Plaintiff, ORDER REGARDING DEFENDANT 6 v. RITZ’S PARTIAL MOTION FOR SUMMARY JUDGMENT (ECF NO. 35) 7 BRIAN WILLIAMS, et al., AND MOTION TO STAY (ECF NO. 37).
8 Defendants.
10 I. SUMMARY 11 Plaintiff Kevin Brooks (“Brooks”) is incarcerated in the custody of the Nevada 12 Department of Corrections (“NDOC”). Brooks brought this action pursuant to 42 13 U.S.C. § 1983 against warden Brian Williams, assistant warden J. Nash, and 14 caseworker Anthony Ritz after Brooks was fired from his job in the law library at 15 High Desert State Prison (“HDSP”). (First Amended Compl., ECF No. 11). Judge 16 Gordon screened Brooks’ First Amended Complaint (“FAC”) and dismissed 17 Defendants Williams and Nash with prejudice but allowed Brooks’ Equal 18 Protection claim to proceed against Defendant Ritz. (ECF No. 15 at 7). Before the 19 Court are Defendant Ritz’s Partial Motion for Summary Judgment (ECF No. 35) 20 and Motion to Stay Case (ECF No. 37). For the reasons explained in this order, 21 this Court grants Ritz’s Partial Motion for Summary Judgment, and denies his 22 Motion to Stay as moot. 23 II. BACKGROUND 24 Prior to May 2017, Brooks worked in the law library at HDSP. This work 25 assignment carried with it certain privileges that were reserved to inmates in the 26 HDSP workers’ unit. (ECF No. 11 at 4). The privileges included the ability to move 27 to certain locations within the prison without an escort, and all-day access to 28 1 prison amenities, including showers and telephones. (Id.). 2 On June 5, 2017 a member of prison staff and non-party, Ms. Murray, 3 allegedly found Brooks and another law library worker, Jack Seka (“Seka”), “going 4 to the same quad.” (ECF No. 35-2 at 2). On June 6, 2017, Defendant Ritz wrote 5 a case note that indicated Brooks had not been told to visit that quad on that day 6 and noted that Operational Procedure (“OP”) 720.02(1) allowed workers in the law 7 library to make visits to inmates who cannot access the library. (Id.). Ritz did not 8 believe Brooks and Seka had any reason to visit that particular area, as inmates 9 housed there had access to the law library twice a week. (Id.). The same day, a 10 Full Classification Committee (“FCC”) composed of Ritz and two other prison staff 11 members concluded that Brooks was “no longer appropriate for a law library 12 worker position and will be unassigned. . . .” (Id.). 13 Whether Brooks was suspended or fired from his job at the law library is 14 disputed. Brooks claims Ritz called him and Seka into a meeting and told them 15 they were being suspended from their jobs, but Ritz did not give a reason for their 16 suspension. (ECF No. 11 at 5). Brooks alleges he was never given a hearing or a 17 disciplinary write-up before or after the suspension, even though he was “level 18 reduced” twice—resulting in the loss of privileges and good time credits. (Id. at 5- 19 6). Defendant Ritz claims Brooks was not suspended but “removed” from his job 20 on June 6, 2017. (ECF No. 35 at 2). 21 On June 19, 2018, Brooks filed his first “informal” grievance in this matter 22 more than a year after his alleged suspension occurred. (ECF No. 35-3 at 1). 23 Brooks claimed that Defendant Ritz had violated his Fourteenth Amendment 24 rights by suspending him from his job without a hearing and preventing him from 25 being considered for at least five additional jobs, resulting in his loss of privileges 26 and good time credits. (Id. at 2-3). On July 6, 2018, the grievance coordinator 27 responded that the grievance was untimely. (Id.). Brooks signed for the grievance 28 on August 16, 2018 and noted that he disagreed with the determination. (Id.). 1 Also on August 16, 2018, Brooks appealed his “informal” grievance to the “first 2 level.” (Id. at 6). Brooks wrote that he “was not fired or wrote-up” but was 3 suspended and believed that the “suspension [was] still pending, to the best of 4 my knowledge.” (Id.). Brooks argued that his grievance could not be untimely 5 because the suspension was an ongoing condition. (Id.). This appeal was also 6 summarily denied as untimely on September 24, 2018, and Brooks signed for the 7 grievance on December 10, 2018. 8 At some point in late 2018 or early 2019, Brooks filed a third appeal to the 9 “second level.” (ECF No. 35 at 3). Original documentation for this third appeal is 10 missing from the record because it has “not yet been discovered” but a summary 11 of the relevant grievance is provided. (ECF Nos. 35 at 2 fn.1; 35-5). 12 The parties disagree about what happened next. Ritz claims that NDOC 13 responded to Brooks, advised him that NDOC will not respond to an improper 14 grievance that results in abuse of the grievance process, but provided Brooks the 15 opportunity to receive a “fully researched” response if Brooks resubmitted all of 16 his grievances and related documents. (ECF Nos. 35 at 3:4-7; 35-5 at 4). Ritz 17 claims Brooks did not resubmit the required documents to obtain a “fully 18 researched” response. (ECF No. 35 at 3:7-9). Brooks argues that he “does not 19 remember this memo” from NDOC in response to this third appeal and believes 20 it was never communicated to him. (ECF No. 39 at 6). The summary of the 21 grievance report indicates “inmate signed on 3/11/2019,” presumably for the 22 grievance memo at issue here, but it also includes a note from Brooks dated four 23 days later, on 3/15/2019, that indicates he believes he did not receive a response 24 “I have waited well over the requested 45 days . . . and I have still not received an 25 answer. . . .” (ECF No. 35-5 at 4). 26 On January 6, 2020, Brooks filed his initial Complaint in this action, which 27 was later amended. (ECF Nos. 1; 11). After mandatory screening this Court 28 allowed Brooks to proceed on one count of Fourteenth Amendment Equal 1 Protection violations against Defendant Ritz. (ECF No. 15). 2 Defendant Ritz argues that summary judgment should be granted in his favor 3 because Brooks failed to exhaust his administrative remedies and initiated this 4 action outside the statute of limitations for § 1983 actions. (ECF No. 35 at 3:18- 5 20). Because this Court finds that Brooks did not exhaust his administrative 6 remedies, it does not reach Ritz’s statute of limitations argument. 7 III. LEGAL STANDARD 8 A. Motion for Summary Judgment 9 “The purpose of summary judgment is to avoid unnecessary trials when there 10 is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t 11 of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary 12 judgment is appropriate when the pleadings, the discovery and disclosure 13 materials on file, and any affidavits “show there is no genuine issue as to any 14 material fact and that the movant is entitled to judgment as a matter of law.” 15 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there 16 is a sufficient evidentiary basis on which a reasonable fact-finder could find for 17 the nonmoving party and a dispute is “material” if it could affect the outcome of 18 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 19 248-49 (1986). Where reasonable minds could differ on the material facts at 20 issue, however, summary judgment is not appropriate. See id. at 250-51. “The 21 amount of evidence necessary to raise a genuine issue of material fact is enough 22 ‘to require a jury or judge to resolve the parties’ differing versions of the truth at 23 trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First 24 Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). The court must 25 view the facts in the light most favorable to the non-moving party and give it the 26 benefit of all reasonable inferences to be drawn from those facts. Matsushita Elec. 27 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must not 28 weigh the evidence or determine the truth of the matter, but only determine 1 whether there is a genuine issue for trial. Balint v. Carson City, 180 F.3d 1047, 2 1054 (9th Cir. 1999). 3 The party seeking summary judgment bears the initial burden of informing 4 the court of the basis for its motion and identifying those portions of the record 5 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 6 U.S. at 323. Once the moving party satisfies Rule 56’s requirements, the burden 7 shifts to the non-moving party to “set forth specific facts showing that there is a 8 genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may 9 not rely on denials in the pleadings but must produce specific evidence, through 10 affidavits or admissible discovery material, to show that the dispute exists,” Bhan 11 v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more 12 than simply show that there is some metaphysical doubt as to the material facts.” 13 Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. 14 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). 15 B. Timely Administrative Exhaustion 16 The Prison Litigation Reform Act of 1996 (PLRA) requires inmates exhaust 17 their administrative remedies prior to bringing an action in court. 42 U.S.C. § 18 1997e. “[T]he PLRA exhaustion requirement requires proper exhaustion.” 19 Woodford v. Ngo, 548 U.S. 81, 93 (2006). Therefore, “a prisoner must complete 20 the administrative review process in accordance with the applicable procedural 21 rules, including deadlines, as a precondition to bringing suit in federal court[.]” 22 Id. at 88. “‘[I]t is the prison’s requirements, and not the PLRA, that define the 23 boundaries of proper exhaustion.’” Reyes v. Smith, 810 F.3d 654, 657 (9th Cir. 24 2016) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). “The Supreme Court has 25 clarified that the unavailability of administrative remedies due to missed 26 deadlines does not render such remedies “exhausted” under the PLRA, nor does 27 it excuse a failure to exhaust.” Manley v. Rowley, 847 F.3d 705, 712 (9th Cir. 28 2017) (citing Woodford, 548 U.S. at 90–93). 1 IV. DISCUSSION 2 A. Timely Administrative Exhaustion 3 Here, the Court finds that Brooks’ action accrued forty-five days after the 4 alleged suspension took place. Because the relevant NDOC regulation provided 5 him six months to file his grievance from the date of injury, and Brooks filed his 6 first informal grievance about a year later, the Court agrees with Defendant Ritz 7 that Brooks failed to exhaust his administrative remedies and grants Ritz’s Partial 8 Motion for Summary Judgment (ECF No. 35) on that basis. 9 In § 1983 prisoners’ civil rights actions the “accrual trigger [is] fixed to the 10 inmate’s knowledge of the injurious event.” Soto v. Sweetman, 882 F.3d 865, 870 11 (9th Cir. 2018). Here, Defendants argue that the injurious event occurred on June 12 6, 2017, when Brooks was fired from his job at the law library. (ECF Nos. 35 at 13 2; 40 at 7). Brooks characterizes the June 6, 2017, event as a suspension rather 14 than a termination, and alleges that the suspension was an ongoing condition, 15 rather than a discrete event. (ECF No. 39 at 5). Specifically, Brooks argues that 16 he believed NDOC staff when they advised him that he was suspended (rather 17 than terminated), and understood “this was either regular suspension procedure, 18 or he was being investigated pursuant to A.R. 707(5)(6)” either of which would 19 have led to a “reasonable delay” and waited to file his grievance based on these 20 representations. (Id. at 7). The “Case Note Printout Report” Ritz attaches to his 21 Partial Motion for Summary Judgment indicates that on June 6, 2017, the full 22 classification committee (“FCC”) concluded Brooks was “no longer appropriate for 23 a law library worker position and will be unassigned per OP [Operational 24 Procedure] 563.05 #15. . .” but it is not clear from the record how this was 25 communicated to Brooks. (ECF No. 35-2 at 2). Brooks alleges there was no 26 hearing or write-up before or after to his termination/suspension. (ECF No. 11 at 27 6). 28 Operational Procedure (“OP”) 563 states that “an inmate pending resolution of 1 disciplinary charges may be suspended from a work assignment” until the 2 completion of the disciplinary process. (Id. at 7). NDOC’s disciplinary process is 3 governed by Administrative Regulation (“AR”) 707 and 707.1. AR 707 provides 4 that the inmate who is alleged to have committed a disciplinary violation shall be 5 served notice of a disciplinary hearing within 15 days after the date of discovery 6 of the violation. AR 707.01(10)(O). AR 707.1 provides that a disciplinary hearing 7 shall take place within 30-calendar days after the notice of charges is served 8 absent exceptional circumstances. AR 707.1(3)(C)(3). 9 Under NDOC regulations, therefore, Brooks had knowledge of the injurious 10 event—that he was suspended/terminated without the required hearing being 11 conducted, see Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974)—no later than 12 45 days after his initial suspension/termination. Accordingly, the Court 13 concludes that Brooks’ action accrued no later than July 21, 2017.1 14 NDOC’s grievance procedures are governed by AR 740. NDOC AR 740.054(A) 15 provides that personal injury grievances and “civil rights claims” must be filed 16 within six months in accordance with NRS 209.243. (ECF No. 35-4 at 8). NRS 17 209.243 further provides that this six-month clock begins on “the date of the 18 alleged loss, damage, or injury.” Untimely claims—those not filed by the deadlines 19 in 740.054—are deemed abandoned. (ECF No. 35-4 at 8). Here, as noted above, 20
21 1 In his informal grievance, Brooks notes that he was denied further employment by Defendant Ritz even after being suspended from his job at the law library. 22 (ECF No. 35-3 at 2-4). However, Brooks neither alleges in his First Amended 23 Complaint nor argues in his Response to Ritz’s Motion for Summary Judgment that the denial of new employment was the injury at issue in this case, and 24 provides no dates or times of the alleged denials in the record. Without a claim or details regarding that nature and timing of being denied other employment, 25 this Court cannot consider this argument as a basis to excuse Brooks delay in grieving his alleged suspension. See Indep. Towers of Wash. v. Washington, 350 26 F.3d 925, 929 (9th Cir. 2003); see also Hibbs v. HDM Dep’t of Human Res., 273 27 F.3d 844, 873 n.34 (9th Cir. 2001) (declining to address an “argument . . . too undeveloped to be capable of assessment”). 28 1 Brooks had a concrete reason to file a grievance no more than 45 days after his 2 suspension, as AR 707’s guidelines explain that, absent exceptional 3 circumstances not alleged in this action, a hearing must be provided within 45 4 days after the alleged injurious event, and Brooks claims no hearing was ever 5 provided. (ECF No. 11 at 6). 6 Brooks argues that, because he was allegedly told he was suspended, rather 7 than terminated, his deprivation was “ongoing” such that it was impossible for 8 his grievance to be untimely, and that there was no ongoing remedy for 9 continuing violations. (ECF No. 39 at 10). Under these facts, the Court cannot 10 countenance that argument because there is no evidence in the record 11 establishing Brooks’ claim that there was no available remedy for suspensions 12 from prison employment that result in loss of good-time credits without the 13 applicable disciplinary hearing. Rather, read together, AR 707 and 740 indicate 14 that a grievance process is available so long as a prisoner incarcerated in an 15 NDOC facility files their first informal grievance less than six months after the 16 last date a timely hearing under AR 707 could have occurred. Brooks failed to do 17 so. 18 Because Brooks failed to timely file his first informal grievance, HDSP never 19 responded on the merits to his grievance, see Reyes v. Smith, 810 F.3d 654, 657 20 (9th Cir. 2016), and “the unavailability of administrative remedies due to missed 21 deadlines does not render such remedies ‘exhausted’ under the PLRA, nor does 22 it excuse a failure to exhaust[,]” this Court grants Defendant Ritz’s Partial Motion 23 for Summary Judgment. (ECF No. 35); Manley, 847 F.3d at 712 (citing Woodford, 24 548 U.S. at 90–93). 25 V. CONCLUSION 26 The Court notes that the parties made several arguments and cited to several 27 cases not discussed above. The Court has reviewed these arguments and cases 28 and determines that they do not warrant discussion as they do not affect the 1 || outcome of the issues before the Court. 2 It is therefore ordered that Defendant Ritz’s Partial Motion for Summary 3 Judgment (ECF No. 35) is GRANTED. 4 It is further ordered that Defendant Ritz’s Motion to Stay Case (ECF No. 37) 5 is DENIED as moot. 6 The Clerk of Court is respectfully directed to close this case. 7 It is so ordered. 8 9 DATED THIS 24th day of January 2023. 10 11 12 Ans ' jlosed Jer 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28