Cody Lavin v. Mr. Scarlett

• Court: District Court, D. Nevada
• Decided: February 26, 2026
• Docket: 3:17-cv-00731
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * *

4 CODY LAVIN, Case No. 3:17-CV-00731-MMD-CLB

5 Plaintiff, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v.

7 MR. SCARLETT, [ECF No. 32]

8 Defendant.

9 This case involves a civil rights action filed by Plaintiff Cody Lavin (“Lavin”) against 10 Defendant Shane Scarlett (“Scarlett”). Currently pending before the Court is Scarlett’s 11 motion for summary judgment. (ECF No. 32.) On December 9, 2025, the Court gave Lavin 12 notice of Scarlett’s motion pursuant to the requirements of Klingele v. Eikenberry, 849 13 F.2d 409 (9th Cir. 1988), and Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). (ECF No. 14 32.) Lavin did not timely file his response, thus the Court sua sponte granted Lavin an 15 extension of time to file his response until February 5, 2026. (ECF No. 35.) To date, Lavin 16 has failed to file an opposition to the motion. For the reasons stated below, the Court 17 recommends that the Court grant Scarlett’s motion for summary judgment, (ECF No. 32). 18 I. PROCEDURAL HISTORY 19 At the time this case was filed, Lavin was an inmate incarcerated in the Nevada 20 Department of Corrections (“NDOC”). (See ECF No. 1.) On December 21, 2017, Lavin 21 submitted a civil rights complaint under 42 U.S.C. § 1983 alleging that while he was 22 incarcerated in Nevada, he was victim of excessive force perpetrated by Scarlett. (ECF 23 Nos. 1, 1-1.) Lavin alleges that on June 7, 2017, he was escorted from the infirmary back 24 to his cell in administrative segregation by Scarlett. (ECF No. 1-1 at 3.) As Lavin entered 25 the cell, Lavin alleges that Scarlett shut the cell door and ordered him to place his hands 26

27 1 This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate 1 outside the food hatch so that he could remove Lavin’s handcuffs. (Id. at 4.) Lavin alleges 2 that he did so, and Scarlett, without justification, grabbed Lavin’s left wrist and began 3 twisting and bending his wrist, causing a scar, bruising, and extreme pain. (Id.) As a result, 4 Lavin alleges he was taken to the infirmary for medical attention and given pain 5 medication. (Id.) Ultimately, the Court screened his complaint pursuant to 28 U.S.C. § 6 1915(a). (ECF No. 6.) Based on the allegations in the complaint, Lavin was permitted to 7 proceed on a single claim for excessive force in violation of his Eighth Amendment rights 8 against Scarlett. (See ECF Nos. 6, 8.) 9 Thereafter, Lavin failed to follow the Court’s order to update his address and to file 10 a new IFP application. (ECF No. 11.) As a result, the Court dismissed this case on 11 December 14, 2019. (ECF No. 12.) Five years later, Lavin filed a motion to reinstate this 12 case, (ECF No. 16), which the Court granted. (ECF No. 18.) Following discovery, Scarlett 13 filed the instant motion for summary judgment. (ECF No. 32.) Lavin failed to oppose or 14 otherwise respond to the motion. 15 II. UNDISPUTED FACTS 16 On June 7, 2017, Lavin “captured” his wrist restraints after he was escorted from 17 the clinic back to his cell.2 (ECF No. 32-1 at 4.) Escorting Officers contacted shift 18 command and advised them of the situation. (Id.) It was determined that Lavin would 19 remain in restraints until he would voluntarily give them up. (Id.) After about five minutes, 20 Lavin agreed to give up the restraints. (Id.) When the officers attempted to remove the 21 restraints, they were only able to release one wrist before Lavin attempted to pull the 22 restraints into his cell. (Id.) Ultimately, the officers were able to completely remove the 23 restraints by pulling them out of the cell and applying a wrist lock to Lavin. (Id.) The 24 restraints were retrieved, but Lavin continued to capture (or hold open) the food slot. (Id.) 25 Part of this incident was captured on video. (ECF No. 33.) The video shows the 26 food slot being open on cell number 47, where Lavin was housed. At approximately 1:02

27 2 Capturing his wrist restraints appears to be in reference to Lavin refusing to allow the escorting to remove his restraints after he was returned to his cell. (See ECF 1 timestamp on the video, officers can be seen escorting Lavin up the stairs towards cell 2 47. (Id. at 1:02.) Lavin is wearing wrist restraints. (Id.) Lavin enters cell 47 at 3 approximately 1:13, and the officers close the cell door at 1:16. (Id. at 1:13-16.) The 4 officers appear to speak with Lavin, and at 1:28, the officers close the food slot. (Id. at 5 1:16-28.) Lavin does not put his hands in the food slot before it is closed. (Id.) The officers 6 appear to continue to speak to Lavin before walking away at 1:52. (Id. at 1:29-52.) The 7 officers did not remove Lavin’s wrist restraints before walking away. (Id. at 1:02-52.) 8 At approximately 6:50, one officer returns to cell 47. (Id. at 6:50.) The officer 9 appears to speak with Lavin before opening the food slot at 7:21. (Id. at 6:50-7:21.) Lavin 10 then places his hands through the food slot and the officer bends down to remove the 11 restraints. (Id. at 7:21-30.) At 7:30, Lavin pulls his hands back from the food slot and is 12 no longer visible. (Id. at 7:30.) The officer continues to speak with Lavin before closing 13 the food slot at 8:01. (Id. at 7:30-8:01.) The officer walks away at 8:07, and does not have 14 Lavin’s wrist restraints. (Id. at 8:07.) 15 Two officers return to cell 47 at 13:57. (Id. at 13:57.) One officer stands such that 16 his body is blocking the view of the food slot. (Id. at 14:03-21.) When the officer moves 17 out of the way at 14:21, the food slot for cell 47 is open. (Id. at 14:21.) Both officers begin 18 pulling Lavin’s wrist restraints through the food slot. (Id. at 14:22.) It appears that the 19 officer who was blocking the food slot moved in order to aid the other officer, who had 20 been attempting to remove Lavin’s wrist restraints. (Id. at 14:21-22.) Both officers then 21 pull Lavin’s arm through the food slot. (Id. at 14:22-27.) While Lavin’s arm is in the food 22 slot, both officers attempted to remove the remaining wrist strap. (Id. at 14:27-15:39.) At 23 15:39, one officer steps back from the door, holding what appears to be the chain portion 24 of the wrist restraint. (Id. at 15:39.) After the chain is removed, one officer maintains 25 control of Lavin’s arm, which remains through the food slot, until 16:32. (Id. at 15:39- 26 16:32.) It appears that the wrist portion of the restraint was still on Lavin’s wrist at this 27 point. (Id.) When the officer steps back from the door, it is clear that Lavin’s arm is 1 waving his hand around while conversing with the officers. (Id. at 16:32-17:55.) The 2 officers walk away at 17:44, and Lavin brings his arm into the cell at 17:56. (Id. at 17:44- 3 56.) 4 After these events, Lavin called a “man down” alleging that his wrist was broken. 5 (ECF No. 32-1 at 11.) A nurse responded and determined that Lavin’s wrist was not 6 broken but possibly had soft tissue damage. (Id. at 12.) There is no evidence in the record 7 showing Lavin suffered any further medical issues based on this incident. 8 III. LEGAL STANDARDS 9 Summary judgment is proper where the pleadings, discovery and affidavits show 10 that there is “no genuine issue as to any material fact and that the moving party is entitled 11 to judgment as a matter of law.” Fed. R. Civ. P. 56(c). Material facts are those which may 12 affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 13 A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable 14 jury to return a verdict for the nonmoving party. Id. 15 The moving party for summary judgment bears the initial burden of identifying 16 those portions of the pleadings, discovery and affidavits which demonstrate the absence 17 of a genuine issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). 18 When the moving party has met this burden of production, the nonmoving party must go 19 beyond the pleadings and, by its own affidavits or discovery, set forth specific facts 20 showing that there is a genuine issue for trial. Id. If the nonmoving party fails to produce 21 enough evidence to show a genuine issue of material fact, the moving party wins. Id. 22 At summary judgment, the court must view the evidence in the light most favorable 23 to the nonmoving party. Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014). If more than one 24 reasonable inference can be drawn from undisputed facts, the trial court must credit the 25 inference in favor of the nonmoving party. Hunt v. Cromartie, 526 U.S. 541, 552 (1999). 26 Where, as here, a summary judgment is unopposed, a district court may not grant 27 the motion solely on that basis. Cristobal v. Siegel, 26 F.3d 1488, 1494-95 & n.4 (9th Cir. 1 movant's papers are themselves sufficient to support the motion and do not on their face 2 reveal a genuine issue of material fact. See Carmen v. San Francisco Unified School 3 District, 237 F.3d 1026, 1029 (9th Cir. 2001). 4 IV. DISCUSSION 5 This case is proceeding on a single claim under the Eighth Amendment claim for 6 excess force against Scarlett. (ECF No. 8.) Scarlett argues he is entitled to summary 7 judgment on this claim because the undisputed facts do not support a finding that Scarlett 8 used excessive force in this case. (ECF No. 32 at 6-9.) 9 The Eighth Amendment’s proscription on cruel and unusual punishment forbids 10 prison officials from inflicting “the unnecessary and wanton infliction of pain . . ..” Whitley 11 v. Albers, 475 U.S. 312, 319 (1986). Encompassed within the Eighth Amendment is a bar 12 on the use of excessive force against prisoners. See Hudson v. McMillian, 503 U.S. 1, 7- 13 10 (1992). Courts in the Ninth Circuit apply a five-part balancing test to excessive force 14 claims: (1) the extent of the inmate’s injuries; (2) the need for application of force; (3) the 15 relationship between the need and amount of force; (4) the threat reasonably perceived 16 by prison officials; and (5) any efforts that officials utilized to “‘temper the severity of a 17 forceful response.’” Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 2003). 18 The inmate must demonstrate that officials acted maliciously and sadistically to 19 prevail. “[W]henever prison officials stand accused of using excessive physical force in 20 violation of the [Eighth Amendment], the core judicial inquiry is . . . whether force was 21 applied in a good-faith effort to maintain or restore discipline, or maliciously and 22 sadistically to cause harm.” Hudson, 503 U.S. at 6-7. As the Ninth Circuit has explained, 23 [t]he “malicious and sadistic” standard arose out of “the need to maintain or restore discipline” inside the prison. When a prison disturbance occurs, 24 prison officials must make “decisions ‘in haste, under pressure, and frequently without the luxury of a second chance.’” In these situations, 25 prison officials are “accorded wide-ranging deference” and therefore, prisoners alleging excessive force must show that the force was applied 26 “maliciously and sadistically to cause harm.” 27 Wood v. Beauclair, 692 F.3d 1041, 1049-50 (9th Cir. 2012) (quoting Hudson, 503 U.S. at 1 factors to verify indicia of “such wantonness with respect to the unjustified infliction of 2 harm as [is] tantamount to a knowing willingness that it occur.” Hudson, 503 U.S. at 9. 3 Moreover, there is no need for a showing of serious injury as a result of the force, but the 4 lack of such injury is relevant to the inquiry. See id. at 7-9; Martinez, 323 F.3d at 1184; 5 Schwenk v. Hartford, 204 F.3d 1187, 1196 (9th Cir. 2000). 6 In the motion for summary judgment, Scarlett asserts that reasonable force was 7 used under the circumstances of this case. (ECF No. 32.) As discussed above, the 8 undisputed facts, uncontradicted by Lavin, are as follows. On June 7, 2017, Lavin 9 “captured” his wrist restraints after he was escorted from the clinic back to his cell. (ECF 10 No. 32-1 at 4.) After about five minutes, Lavin agreed to give up the restraints. (Id.) When 11 the officers attempted to remove the restraints, only one wrist was released before Lavin 12 attempted to pull the restraints into his cell. (Id.) Ultimately, the officers were able to 13 remove the restraints by pulling Lavin’s arm through the food slot and applying a wrist 14 lock. (Id.; ECF No. 33 at 13:57-16:32.) The restraints were retrieved, but Lavin continued 15 to capture (or hold open) the food slot. (ECF No. 32-1 at 4; ECF No. 33 at 16:32-17:56.) 16 Here, based on the undisputed evidence, the Hudson factors objectively weigh 17 against finding an Eighth Amendment violation. Hudson, 503 U.S. at 6-7. First, the use of 18 force generally was necessary. Lavin’s restraints needed to be removed; however, he 19 refused to comply with orders to remove them and captured the restraints. When Lavin finally agreed to the removal of the restraints, he again attempted to pull them back. It 20 was only at this point that the officers grabbed the restraint and pulled Lavin’s arm through 21 the food slot to apply the wrist lock in order to remove the restraints. 22 Second, the amount of force used was proportional to the need. Here, Scarlett 23 used minimal force to hold Lavin’s arm to retrieve the restraints and remove them. There 24 is no evidence that Scarlett used other, greater force to accomplish this. Further, the 25 officers stopped using force as soon as the restraints were completely recovered. Thus, 26 the force used was objectively minimal and proportional to the need to gain control of 27 Lavin and recover the restraints. As for the extent of Lavin’s injuries, the injuries reported 1 were minimal, if not de minimis. Medical reported Lavin suffered only minimal redness to 2 his wrist and no severe injury Thus, both the factors of proportionality of force used and 3 the extent of injuries weigh against finding a violation of the Eighth Amendment. Hudson, 4 503 U.S. at 6-7. Next, the threat Scarlett reasonably perceived was significant. Lavin was refusing 5 to return his restraints, which are metal cuffs and chains which could be used for nefarious 6 or improper purposes if not recovered from Lavin. Finally, Scarlett attempted to temper 7 the severity of his response by giving verbal commands to Lavin before using any hands- 8 on force, however, Lavin refused to comply. 9 Based on the undisputed evidence before the Court, all five of the relevant Hudson 10 factors weigh in favor of finding that Scarlett did not use excessive force. Hudson, 503 11 U.S. at 6-7. There is no dispute as to the minimal amount of force used, the circumstances 12 under which it was applied, and the minimal injuries to Lavin as a result of the minimal 13 force. As such, Scarlett has met his initial burden of establishing there is no genuine issue 14 of material fact as to the merits of the excessive force claim. Celotex, 477 U.S. at 323. 15 The burden then shifts to Lavin to oppose the motion and provide any evidence to create 16 any genuine issue of fact. Id. As Lavin failed to oppose the motion entirely, he does not – 17 and cannot – show that Scarlett applied force maliciously and sadistically to cause harm 18 rather than in a good-faith effort to maintain or restore discipline. Id.; Hudson, 503 U.S. at 19 6. To the contrary, Scarlett applied a minimal amount of force necessary in a good-faith 20 effort to maintain order, and it was not done maliciously or sadistically to cause harm. 21 Hudson, 503 U.S. at 6. Accordingly, the Court recommends Scarlett’s motion for summary 22 judgment be granted.3 23 /// 24 /// 25 /// 26 ///

27 3 Because the Court recommends that the motion for summary judgment be granted in its entirety based on a finding that no constitutional violations occurred, it need 1| IV. CONCLUSION 2 For good cause appearing and for the reasons stated above, the Court recommends that Scarlett’s motion for summary judgment, (ECF No. 32), be granted. 4 The parties are advised: 5 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 6 Practice, the parties may file specific written objections to this Report and 7 Recommendation within fourteen days of receipt. These objections should be entitled 3 “Objections to Magistrate Judge’s Report and Recommendation” and should be 9 accompanied by points and authorities for consideration by the District Court.

40 2. This Report and Recommendation is not an appealable order and any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the " District Court’s judgment. "2 V. RECOMMENDATION "8 IT IS THERFORE RECOMMENDED that Scarlett’s motion for summary judgment, “ (ECF No. 32), be GRANTED. 1 IT IS FURTHER RECOMMENDED that the Clerk of Court ENTER JUDGMENT 16 accordingly and CLOSE this case. 7 DATED: February 26, 2026. . 18 an brie 20 21 22 23 24 25 26 27 28