James Edward Scott, III v. Taitano, et al

• Court: District Court, D. Nevada
• Decided: January 30, 2026
• Docket: 3:23-cv-00253
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 JAMES EDWARD SCOTT, III, Case No. 3:23-cv-00253-ART-CSD 6 Plaintiff, ORDER 7 v.

8 TAITANO, et al,

9 Defendant.

10 I. BACKGROUND 11 The Court adopts the following facts from the R&R: When Plaintiff filed this 12 action, he was an inmate in the custody of the Nevada Department of Corrections 13 (NDOC), proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 14 1983. He is no longer in the custody of NDOC. (See ECF No. 27.) 15 The court screened Plaintiff’s complaint and allowed him to proceed with 16 an Eighth Amendment deliberate indifference to serious medical needs claim 17 against defendants Jeffrey Holz (named by Plaintiff as Holtz), Daniel Omler, 18 Brittany Owens, Smallwood, Michael Ortzel, Joshua Collins, Leah Bories, Nephi 19 Taitano, Robert Smith, Remer, Christopher Herzog, William Miller, Aaron Ryer, 20 David Craig, Michael Flamm, David Tolotti, Benu Clark, Shawn Fluhrer, and 21 Michael Tierney. The claim is based on Plaintiff’s allegations that beginning on 22 January 1, 2020, Defendants failed to transport Plaintiff to his life saving dialysis 23 treatment as scheduled. (ECF No. 7.) 24 At a November 6, 2024, case management conference, the Court gave 25 Plaintiff up to and including December 9, 2024, to complete service as to 26 Defendants Smallwood and Remer. (ECF No. 22.) To date, no proof of service has 27 been filed for Smallwood and Remer. 28 1 The remaining Defendants moved for summary judgment, arguing: (1) 2 Plaintiff did not exhaust administrative remedies before filing this action; (2) 3 Defendants are entitled to qualified immunity because there was no 4 constitutional violation as there is no evidence Defendants intentionally 5 interfered with or delayed his dialysis care; (3) there is no allegation or evidence 6 of each Defendants’ personal participation in the alleged constitutional violation; 7 (4) Plaintiff’s claim is barred by the statute of limitations; and (5) any claim for 8 punitive damages fails. 9 Judge Denney concluded that Mr. Scott did not exhaust his administrative 10 remedies as to the Eighth Amendment deliberate indifference claim he raised in 11 the action, and therefore, summary judgment should be granted in favor of the 12 Defendants. (ECF No. 45.) He also found that Defendants Smallwood and Remer 13 should be dismissed without prejudice pursuant to Federal Rule of Civil 14 Procedure 4(m). Plaintiff objected. (ECF No. 46.) Defendants responded. (ECF No. 15 47.) 16 II. LEGAL STANDARD 17 a. Review of Reports and Recommendations 18 Under the Federal Magistrates Act, a court “may accept, reject, or modify, 19 in whole or in part, the findings or recommendations made by [a] magistrate 20 judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's 21 report and recommendation, then the court is required to “make a de 22 novo determination of those portions of the [report and recommendation] to which 23 objection is made.” 28 U.S.C. § 636(b)(1). A court is not required to conduct “any 24 review at all . . . of any issue that is not the subject of an objection.” Thomas v. 25 Arn, 474 U.S. 140, 149 (1985). Mr. Scott objected to the R&R. (ECF No. 46.) 26 Therefore, the Court reviews the R&R de novo for those subjects that Mr. Scott 27 objected to. 28 1 a. Motion for Summary Judgment 2 Summary judgment is appropriate when the record shows “no genuine 3 issue as to any material fact and that the movant is entitled to judgment as a 4 matter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 5 (1986). An issue is “genuine” if the evidence would permit a reasonable jury to 6 return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 7 U.S. 242, 249 (1986). A fact is “material” if it could affect the outcome of the case. 8 Id. at 248. 9 In considering a motion for summary judgment, all reasonable inferences 10 are drawn in the light most favorable to the non-moving party. In re Slatkin, 525 11 F.3d 805, 810 (9th Cir. 2008) (citation omitted); Kaiser Cement Corp. v. Fischbach 12 & Moore Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). However, if the evidence of 13 the nonmoving party “is not significantly probative, summary judgment may be 14 granted.” Anderson, 477 U.S. at 249-250 (citations omitted). The court's function 15 is not to weigh the evidence and determine the truth or to make credibility 16 determinations. Celotex, 477 U.S. at 249, 255; Anderson, 477 U.S. at 249. 17 III. ANALYSIS 18 Plaintiff objects to the magistrate judge’s conclusions on the grounds that 19 it (1) misapplies the PLRA burden-shifting framework, (2) resolves factual 20 disputes about “emergency” status without an Albino hearing, and (3) overlooks 21 record evidence that the NDOC grievance system was unavailable as to Plaintiff’s 22 dialysis-transport issue. (ECF No. 46 at 3-4.) This boils down to essentially two 23 objections: that the R&R applied the wrong standard, and that there is genuine 24 dispute of material fact as to whether administrative remedies were available. 25 Plaintiff also argues that the Rule 4(m) deadline should be waived for good 26 cause or excusable neglect, and requests that “any perceived pleading or record 27 gap . . . should be addressed via accommodation . . . rather than dismissing on 28 a technicality.” (Id. at 5.) 1 a. Plaintiff’s Burden for Exhaustion 2 Plaintiff argues that although Defendants identified several incomplete 3 grievance processes, his burden was merely to show unavailability, not prove 4 perfect compliance with the grievance procedure. (ECF No. 46 at 3.) 5 The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be 6 brought with respect to prison conditions under section 1983 of this title, or any 7 other Federal law, by a prisoner confined in any jail, prison, or other correctional 8 facility until such administrative remedies as are available are exhausted.” 42 9 U.S.C. § 1997e(a). The PLRA requires “proper exhaustion” of an inmate's 10 claims. Woodford v. Ngo, 548 U.S. 81, 90 (2006). This means that “a prisoner 11 must complete the administrative review process in accordance with the 12 applicable procedural rules, including deadlines, as a precondition to bringing 13 suit in federal court.” Id. at 88. An inmate need exhaust only 14 such administrative remedies as are “available.” Ross v. Blake, 578 U.S. 632, 648 15 (2016); see e.g., Eaton v. Blewett, 50 F.4th 1240, 1245 (9th Cir. 2022). 16 The failure to exhaust administrative remedies is "'an affirmative defense 17 the defendant must plead and prove.'" Albino v. Baca, 747 F.3d 1162, 1166 (9th 18 Cir. 2014) (quoting Jones v. Bock, 549 U.S. 199, 204, 216 (2007)). To determine 19 if a defendant has proved a failure to exhaust under the PLRA, the court applies 20 the burden-shifting framework from the Torture Victim Protection Act. Williams, 21 775 F.3d at 1191 (quoting Albino, 747 F.3d at 1172 (citing Hilao v. Estate of 22 Marcos, 103 F.3d 767 (9th Cir. 1996))). The defendant must prove that there is 23 an available administrative remedy and that the prisoner did not exhaust that 24 available remedy. Id. The burden then shifts to the plaintiff, who must show that 25 something particular in his case made the existing and generally available 26 administrative remedies effectively unavailable because they were ineffective, 27 unobtainable, unduly prolonged, inadequate, or obviously futile. Id. 28 Plaintiff does not dispute that Defendants met their initial burden. (ECF 1 No. 46 at 3.) He argues that he has sufficiently raised a triable dispute that 2 administrative remedies were unavailable. (Id.) Plaintiff’s only argument on 3 availability in response to the Motion for Summary Judgment was “NDOC’s 4 frequent non-responses rendered remedies ‘unavailable’ within the meaning of 5 Ross v. Blake, 578 U.S. 632 (2016). This alone defeats summary judgment on 6 exhaustion.” (ECF No. 37 at 7.) Plaintiff did not point to any specific grievance 7 where NDOC failed to respond and therefore made remedies unavailable. The 8 Court agrees with the R&R’s conclusion that this assertion is not sufficient to 9 meet the standard of “something particular” that made administrative remedies 10 ineffective, unobtainable, unduly prolonged, inadequate, or obviously futile. See 11 Albino, 747 F.3d at 1172. 12 Therefore, the magistrate judge properly applied the burden-shifting 13 framework and the objection is overruled. 14 b. Availability of Grievance Procedure 15 Plaintiff argues that the reasons for his denials show the AR 740 process 16 was “opaque, self-contradictory, and functioned as a dead end for Plaintiff’s 17 dialysis claim.” (ECF No. 46 at 3.) He claims that the cited grievances show 18 “classic unavailability hallmarks:” specifically, that his emergency grievance was 19 reclassified to non-emergency for lacking a medical reason for transport help, and 20 second, that his grievances suffered from serial rejections for technicalities. (Id. 21 at 3.) He argues that NDOC’s responses “show an opaque maze,” therefore 22 making the grievance process incapable of use. (Id. at 4.) 23 The Supreme Court has recognized at least three situations in which an 24 administrative remedy is unavailable: (1) “when (despite what regulations or 25 guidance materials may promise) it operates as a simple dead end—with officers 26 unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) if 27 it is “so opaque that it becomes, practically speaking, incapable of use”; and (3) 28 “when prison administrators thwart inmates from taking advantage of a grievance 1 process through machination, misrepresentation, or intimidation.” Ross, 578 2 U.S. at 633. 3 The Ninth Circuit has found administrative remedies unavailable where a 4 prison warden incorrectly implied that an inmate needed access to a nearly 5 unobtainable prison policy in order to bring a timely administrative appeal, Nunes 6 v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010), where prison officials declined 7 to reach the merits of a particular grievance “for reasons inconsistent with or 8 unsupported by applicable regulations,” Sapp v. Kimbrell, 623 F.3d 813, 823-24 9 (9th Cir. 2010), and where an inmate did not have access to the necessary 10 grievance forms within the prison's time limits for filing a grievance, Marella v. 11 Terhune, 568 F.3d 1024, 1027-28 (9th Cir. 2009). 12 Plaintiff argues that the fact that several emergency grievances were 13 classified as non-emergent indicates that administrative remedies were 14 unavailable to him. (ECF No. 46 at 4.) He claims that NDOC “repeatedly re-routed 15 or screened out the grievance on shifting bases, preventing merits review.” (Id.) 16 The grievances that Plaintiff cites to in his objection, numbers 20063142423, 17 20063142480, and 20063142591 deny his emergency grievances as non- 18 emergent for lack of a medical reason for vehicular transport. (ECF No. 34-3 at 19 94, 95, 96.) Plaintiff does not argue how he found that the re-classifications of 20 his emergency grievances made the remainder of the grievance process opaque 21 or unavailable. AR-740.07(7) provides that an inmate can request further review 22 of a claim not deemed an emergency through a grievance appeal commencing at 23 the Informal Level. The Inmate Grievance History does not show that Plaintiff 24 requested further review of any of these re-classifications. Therefore, Plaintiff has 25 not provided any facts that indicate exhaustion was unavailable to him. 26 Plaintiff argues that the rejections of his grievance 20063143007 for 27 “missing administrative claim form,” “multiple issues,” “altering the form,” and 28 “blacked out dates” are examples of improper screening under Sapp, 623 F.3d at 1 823-34. (ECF No. 46 at 3.) Looking at grievance 20063143007, the reasons the 2 grievance was rejected were listed explicitly within AR 740.04(2). This is not an 3 example of unavailability. See Sapp, 623 F.3d at 825 (finding screening proper 4 where rejection was supported by applicable regulations). Plaintiff does not make 5 any other argument about why the multiple rejection rationales show opacity or 6 unavailability. Therefore, the Court agrees with R&R and finds that Plaintiff has 7 not argued with sufficient specificity that the grievance process was unavailable 8 to waive proper exhaustion. 9 c. Factual Disputes Demonstrate Need for Evidentiary Hearing 10 Plaintiff next argues that there are remaining factual disputes as to (1) 11 whether his dialysis-access grievance was an “emergency,” (2) whether the non- 12 emergency reclassification was appropriate, (3) what AR 740 required after “not 13 emergency” determinations, and (4) whether serial technical rejections were 14 legitimate or pretextual that warrant an Albino hearing. (ECF No. 46 at 3-4.) 15 Defendants respond that Plaintiff’s alleged factual disputes surrounding AR 740’s 16 emergency procedures are not responsive to the inquiry as to whether Plaintiff 17 properly exhausted his grievances or whether the grievance process was made 18 unavailable to Plaintiff. (ECF No. 47 at 3.) It further argues that the technical 19 rejections of Plaintiff’s claims, including altering the grievance form, failing to 20 provide proper documents, or including too many issues are all within the 21 framework of applicable regulations. (Id.) 22 The Court agrees with Defendants that the factual disputes that Plaintiff 23 identifies in regards to the emergency grievance procedure are not disputes of 24 material fact related to the availability of the grievance procedure as it relates to 25 exhaustion. Plaintiff does not argue that he was not aware of the emergency 26 grievance appeals process or that it was made unavailable to him. Similarly, 27 Plaintiff does not provide any facts in support of his allegation that technical 28 rejections of grievance 20063143007 were pretextual. Therefore, there are no 1 || disputes of material fact as to the availability of the grievance procedure that 2 || warrant an Albino hearing. 3 d. Good Cause and Excusable Neglect Warrant Extension of Rule 4 4(m) Deadline and Procedural Accommodations 5 Having found that Plaintiff has not exhausted his administrative remedies, 6 || this action is dismissed and Plaintiff's requests for extension of the Rule 4(m) 7 || deadline and procedural accommodations are moot. 8 IV. CONCLUSION 9 It is therefore ordered that the Report and Recommendation (ECF No. 45) 10 || is ADOPTED. 11 It is further ordered that the Motion for Summary Judgment (ECF No. 34) 12 || is GRANTED. 13 It is further kindly ordered that the Clerk enter judgment in Defendant’s 14 || favor and close the case. 15 16 Dated this 30 day of January, 2026. 17 18 Aras jlosed Ten 19 ANNER.TRAUM 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28