Espinosa v. Gittere

Opinion

2 DISTRICT OF NEVADA

3 BENJAMIN ESPINOSA, Case No. 3:21-cv-00205-ART-CLB 4 Plaintiff, ORDER 5 v.

6 WILLIAM GITTERE, et al.,

7 Defendants.

8 9 I. SUMMARY 10 Pro se Plaintiff Benjamin Espinosa brings this action under 42 U.S.C. § 11 1983 against Defendants Gloria Carpenter, David Drummond, William Gittere, 12 Dennis Homan, Dawn Jones, William Reubart, Stark, Jon Verde, and Harold 13 Wickham. Plaintiff alleges that Defendants violated his First Amendment rights 14 by placing him in the infirmary for thirteen days in retaliation for complaining 15 about finding foreign items in his food. Plaintiff also alleges that Defendants failed 16 to act to prevent him from consuming poisoned food and were deliberately 17 indifferent to Plaintiff’s need for protection in violation of his Eighth Amendment 18 rights. Finally, Plaintiff alleges that Defendants failed to address health issues he 19 experienced from consuming poisoned food. (ECF No. 23.) 20 Before the Court is a Report and Recommendation (“R&R” or 21 “Recommendation”) of United States Magistrate Judge Carla Baldwin (ECF No. 22 83), recommending the Court grant Defendants’ Motion for Summary Judgment 23 (ECF No. 62). Plaintiff filed an objection to the R&R (ECF No. 84 (“Objection”)), to 24 which Defendants responded (ECF No. 85) and Plaintiff replied (ECF No. 86). 25 Because the Court agrees with Judge Baldwin’s analysis as to Defendants’ 26 Motion, the Court will adopt the R&R in full. Accordingly, the Court will grant 27 Defendants’ Motion for Summary Judgment. 28 2 The Court incorporates by reference Judge Baldwin’s recitation of the 3 relevant factual background and procedural history, which the Court adopts from 4 the R&R. (ECF No. 83 at 1-3.) 5 III. LEGAL STANDARD 6 This Court “may accept, reject, or modify, in whole or in part, the findings 7 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 8 a party timely objects to a magistrate judge’s report and recommendation, then 9 the Court is required to “make a de novo determination of those portions of the 10 [report and recommendation] to which objection is made.” Id. Where a party fails 11 to object to a magistrate judge’s recommendation, the Court is not required to 12 conduct “any review at all . . . of any issue that is not the subject of an objection.” 13 Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 14 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ 15 findings and recommendations is required if, but only if, one or both parties file 16 objections to the findings and recommendations.”) (emphasis in original); Fed. R. 17 Civ. P. 72, Advisory Committee Notes (1983) (providing that the Court “need only 18 satisfy itself that there is no clear error on the face of the record in order to accept 19 the recommendation.”). 20 Here, the Court’s review is de novo on the issues raised in Plaintiff’s 21 Objection. In his Objection, Plaintiff raises four issues: 1) Defendants’ argument 22 that placing Plaintiff in the infirmary was for his protection and therefore 23 advanced a legitimate correctional goal was improperly raised for the first time 24 on reply; 2) the existence of a legitimate correctional goal does not justify granting 25 summary judgment on Plaintiff’s retaliation claim; 3) the declarations Plaintiff 26 submitted on the issue of whether Defendant Gittere ordered cell extraction are 27 not inadmissible hearsay; and 4) Judge Baldwin’s Recommendation on Plaintiff’s 28 failure to protect claim ignores evidence creating triable issues of fact. 2 The first issue raised in Plaintiff’s Objection fails. Defendants cite authority 3 establishing “[t]he main purpose of a reply brief is to rebut the nonmovant's 4 response.” Vitale & Assocs., LLC v. Lowden, No: 2:12-cv-01400-JAD-VCF, 2014 5 WL 1764715, at *4 (D. Nev. May 2, 2014); see, e.g., Evans v. Encore Event Techs., 6 Inc., No 2:15-cv-01120-GMN-CWH, 2017 WL 986357, at *1 n.1 (D. Nev. Mar. 14, 7 2017) (“In a reply, a party may use evidence to rebut evidence presented in an 8 opposition to a motion for summary judgment.” . . . If a reply does not “bring up 9 new arguments, but rather support[s] [the] original argument” it is not improper.). 10 Here, the Court finds that Defendants’ argument on reply concerning the 11 existence of a legitimate correctional interest in placing Plaintiff in the infirmary 12 was not new. This argument was raised by Defendants in their Motion for 13 Summary Judgment. (ECF No. 62 at 12.) Defendants’ argument on this issue in 14 their reply was therefore properly presented and considered by Judge Baldwin. 15 Second, Plaintiff’s argument that the existence of a legitimate correctional 16 goal does not justify granting summary judgment on his retaliation claim is not 17 supported by Ninth Circuit precedent. “A prison inmate retains those First 18 Amendment rights that are not inconsistent with his status as a prisoner or with 19 the legitimate penological objectives of the corrections system.” Pell v. Procunier, 20 417 U.S. 817, 822 (1974). Within the prison context, a viable retaliation claim 21 has five elements: (1) a state actor took some adverse action against the inmate, 22 (2) because of, (3) the inmate’s protected conduct, and that the action, (4) chilled 23 the inmate’s exercise of his First Amendment rights, and (5) did not reasonably 24 advance a legitimate correctional goal. Rhodes v. Robinson, 408 F.3d 559, 567– 25 68 (9th Cir. 2004). A finding that Defendants’ actions reasonably advanced a 26 legitimate correctional goal does justify granting summary judgment in 27 Defendants’ favor. The Court therefore agrees with Judge Baldwin’s analysis. 28 1 Third, the Court agrees with Judge Baldwin’s conclusion that the 2 || statements included in the declarations submitted by Plaintiff reporting what a 3 || guard told Plaintiff and his cellmate are inadmissible hearsay. As such, those 4 || statements cannot be considered as evidence of Defendant Gittere ordering cell 5 || extraction. 6 Fourth, the Court agrees with Judge Baldwin’s analysis on Plaintiffs claim 7 || for deliberate indifference to need for protection and finds there is no dispute as 8 || to whether Defendants took action to investigate and remedy the issues 9 || surrounding the allegedly poisoned food. There is therefore no evidence that 10 || Defendants disregarded risks to Plaintiffs health, so summary judgment is 11 || appropriate. 12 || V. CONCLUSION 13 It is therefore ordered that Plaintiffs Objection (ECF No. 84) to the Report 14 || and Recommendation of U.S. Magistrate Judge Carla Baldwin is overruled. The 15 || Report and Recommendation (ECF No. 83) is therefore adopted in full. 16 It is further ordered that Defendants’ Motion for Summary Judgment (ECF 17 || No. 62) is GRANTED. 18 It is further ordered that Defendants Carpenter, Stark, and Jones 19 || be DISMISSED from this action. 20 It is further ordered that the Clerk ENTER JUDGMENT in favor of 21 || Defendants and CLOSE this case. 22 23 DATED THIS 29t day of March 2024. 24 25 > vs jlosed den 26 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 27 28