6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA
8 * * *
9 LAUSTEVEION JOHNSON, Case No. 2:17-cv-01280-JCM-BNW
10 Plaintiff, ORDER v. 11 LAW LIBRARY, et al., 12 Defendants. 13 14 15 Presently before the court is plaintiff Lausteveion Johnson’s (“plaintiff”) motion for 16 summary judgment. (ECF No. 43). Defendants Ridrigo Espino (“Espino”) and Rashonda 17 Smith (“Smith”) (collectively “defendants”) filed a response (ECF No. 50), to which plaintiff 18 replied (ECF No. 52). 19 Also before the court is defendants’ countermotion for summary judgment. (ECF 20 No. 51). Plaintiff filed a response (ECF No. 53), to which defendants replied (ECF No. 21 54). 22 I. Background 23 The instant § 1983 claim arises from a dispute between plaintiff and Smith, a law 24 librarian at Southern Desert Correctional Center (“SDCC”). (ECF Nos. 6; 10). Plaintiff 25 claims that he was denied access to the courts and that defendants unlawfully retaliated 26 against him. Id. 27 Plaintiff alleges the dispute stems, at least in part, from him rebuking the Smith’s sexual advances. (ECF No. 43 at 2–3). Plaintiff alleges that Smith’s conduct toward 1 plaintiff thereafter “depriv[ed] plaintiff of his rights” and, as a result, he began filing 2 grievances against her. Id. at 3. Smith—purportedly scorned by plaintiff and his 3 grievances—retaliated by denying plaintiff access to the law library, placing him on 24- 4 hour lockdown, denying him legal supplies, refusing to make copies of legal documents, 5 withholding certain legal documents, fabricating a notice of charge (“NOC”), and 6 conspiring with Espino to find plaintiff guilty of the fraudulent NOC. Id. at 3–4. 7 Defendants argue that Smith did not simply refuse to provide plaintiff with legal 8 supplies and refused to make copies. (ECF No. 51 at 13, 15). To the contrary, 9 defendants contend that plaintiff was not on the “indigent list.” Id. at 13. Thus, Smith 10 refused to provide legal supplies for free. Id. at 13–14. Similarly, plaintiff did not have 11 sufficient funds to make copies, and Smith refused to make copies on that ground alone. 12 Id. at 15. Further, defendants argue that plaintiff—both before this court and in his 13 administrative grievances—“failed to provide any date or documentation of being denied 14 access to the law library.” Id. at 14. Finally, defendants contend that Smith properly filed 15 the NOC against plaintiff pursuant to Operational Procedure (“OP”) 722, which “provides 16 that when an inmate makes an appointment to come to the Law Library that is not 17 honored, ‘it will result in a NOC (Notice of Charges).’” Id. at 7 (quoting ECF No. 51-3 at 18 15), 15–17. 19 II. Legal Standard 20 The Federal Rules of Civil Procedure allow summary judgment when the 21 pleadings, depositions, answers to interrogatories, and admissions on file, together with 22 the affidavits, if any, show that “there is no genuine dispute as to any material fact and 23 the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal 24 purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” 25 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 26 For purposes of summary judgment, disputed factual issues should be construed 27 in favor of the nonmoving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). 1 However, to withstand summary judgment, the nonmoving party must “set forth specific 2 facts showing that there is a genuine issue for trial.” Id. 3 In determining summary judgment, a court applies a burden-shifting analysis. 4 “When the party moving for summary judgment would bear the burden of proof at trial, it 5 must come forward with evidence which would entitle it to a directed verdict if the evidence 6 went uncontroverted at trial. In such a case, the moving party has the initial burden of 7 establishing the absence of a genuine issue of fact on each issue material to its case.” 8 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 9 (citations omitted). 10 By contrast, when the nonmoving party bears the burden of proving the claim or 11 defense, the moving party can meet its burden in two ways: (1) by presenting evidence 12 to negate an essential element of the nonmoving party’s case; or (2) by demonstrating 13 that the nonmoving party failed to make a showing sufficient to establish an element 14 essential to that party’s case on which that party will bear the burden of proof at trial. See 15 Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, 16 summary judgment must be denied and the court need not consider the nonmoving 17 party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). 18 If the moving party satisfies its initial burden, the burden then shifts to the opposing 19 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. 20 Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party need not 21 establish a dispute of material fact conclusively in its favor. See T.W. Elec. Serv., Inc. v. 22 Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). It is sufficient that “the 23 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 24 versions of the truth at trial.” Id. 25 In other words, the nonmoving party cannot avoid summary judgment by relying 26 solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 27 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the 1 assertions and allegations of the pleadings and set forth specific facts by producing 2 competent evidence that shows a genuine issue for trial. See Celotex, 477 U.S. at 324. 3 At summary judgment, a court’s function is not to weigh the evidence and 4 determine the truth, but to determine whether a genuine dispute exists for trial. See 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The evidence of the 6 nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” 7 Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not 8 significantly probative, summary judgment may be granted. See id. at 249–50. 9 The Ninth Circuit has held that information contained in an inadmissible form may 10 still be considered for summary judgment if the information itself would be admissible at 11 trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citing Block v. City of Los 12 Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001) (“To survive summary judgment, a party 13 does not necessarily have to produce evidence in a form that would be admissible at trial, 14 as long as the party satisfies the requirements of
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6 UNITED STATES DISTRICT COURT
7 DISTRICT OF NEVADA
8 * * *
9 LAUSTEVEION JOHNSON, Case No. 2:17-cv-01280-JCM-BNW
10 Plaintiff, ORDER v. 11 LAW LIBRARY, et al., 12 Defendants. 13 14 15 Presently before the court is plaintiff Lausteveion Johnson’s (“plaintiff”) motion for 16 summary judgment. (ECF No. 43). Defendants Ridrigo Espino (“Espino”) and Rashonda 17 Smith (“Smith”) (collectively “defendants”) filed a response (ECF No. 50), to which plaintiff 18 replied (ECF No. 52). 19 Also before the court is defendants’ countermotion for summary judgment. (ECF 20 No. 51). Plaintiff filed a response (ECF No. 53), to which defendants replied (ECF No. 21 54). 22 I. Background 23 The instant § 1983 claim arises from a dispute between plaintiff and Smith, a law 24 librarian at Southern Desert Correctional Center (“SDCC”). (ECF Nos. 6; 10). Plaintiff 25 claims that he was denied access to the courts and that defendants unlawfully retaliated 26 against him. Id. 27 Plaintiff alleges the dispute stems, at least in part, from him rebuking the Smith’s sexual advances. (ECF No. 43 at 2–3). Plaintiff alleges that Smith’s conduct toward 1 plaintiff thereafter “depriv[ed] plaintiff of his rights” and, as a result, he began filing 2 grievances against her. Id. at 3. Smith—purportedly scorned by plaintiff and his 3 grievances—retaliated by denying plaintiff access to the law library, placing him on 24- 4 hour lockdown, denying him legal supplies, refusing to make copies of legal documents, 5 withholding certain legal documents, fabricating a notice of charge (“NOC”), and 6 conspiring with Espino to find plaintiff guilty of the fraudulent NOC. Id. at 3–4. 7 Defendants argue that Smith did not simply refuse to provide plaintiff with legal 8 supplies and refused to make copies. (ECF No. 51 at 13, 15). To the contrary, 9 defendants contend that plaintiff was not on the “indigent list.” Id. at 13. Thus, Smith 10 refused to provide legal supplies for free. Id. at 13–14. Similarly, plaintiff did not have 11 sufficient funds to make copies, and Smith refused to make copies on that ground alone. 12 Id. at 15. Further, defendants argue that plaintiff—both before this court and in his 13 administrative grievances—“failed to provide any date or documentation of being denied 14 access to the law library.” Id. at 14. Finally, defendants contend that Smith properly filed 15 the NOC against plaintiff pursuant to Operational Procedure (“OP”) 722, which “provides 16 that when an inmate makes an appointment to come to the Law Library that is not 17 honored, ‘it will result in a NOC (Notice of Charges).’” Id. at 7 (quoting ECF No. 51-3 at 18 15), 15–17. 19 II. Legal Standard 20 The Federal Rules of Civil Procedure allow summary judgment when the 21 pleadings, depositions, answers to interrogatories, and admissions on file, together with 22 the affidavits, if any, show that “there is no genuine dispute as to any material fact and 23 the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal 24 purpose of summary judgment is “to isolate and dispose of factually unsupported claims.” 25 Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 26 For purposes of summary judgment, disputed factual issues should be construed 27 in favor of the nonmoving party. Lujan v. Nat’l Wildlife Fed., 497 U.S. 871, 888 (1990). 1 However, to withstand summary judgment, the nonmoving party must “set forth specific 2 facts showing that there is a genuine issue for trial.” Id. 3 In determining summary judgment, a court applies a burden-shifting analysis. 4 “When the party moving for summary judgment would bear the burden of proof at trial, it 5 must come forward with evidence which would entitle it to a directed verdict if the evidence 6 went uncontroverted at trial. In such a case, the moving party has the initial burden of 7 establishing the absence of a genuine issue of fact on each issue material to its case.” 8 C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) 9 (citations omitted). 10 By contrast, when the nonmoving party bears the burden of proving the claim or 11 defense, the moving party can meet its burden in two ways: (1) by presenting evidence 12 to negate an essential element of the nonmoving party’s case; or (2) by demonstrating 13 that the nonmoving party failed to make a showing sufficient to establish an element 14 essential to that party’s case on which that party will bear the burden of proof at trial. See 15 Celotex Corp., 477 U.S. at 323–24. If the moving party fails to meet its initial burden, 16 summary judgment must be denied and the court need not consider the nonmoving 17 party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). 18 If the moving party satisfies its initial burden, the burden then shifts to the opposing 19 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. 20 Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party need not 21 establish a dispute of material fact conclusively in its favor. See T.W. Elec. Serv., Inc. v. 22 Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). It is sufficient that “the 23 claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing 24 versions of the truth at trial.” Id. 25 In other words, the nonmoving party cannot avoid summary judgment by relying 26 solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 27 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must go beyond the 1 assertions and allegations of the pleadings and set forth specific facts by producing 2 competent evidence that shows a genuine issue for trial. See Celotex, 477 U.S. at 324. 3 At summary judgment, a court’s function is not to weigh the evidence and 4 determine the truth, but to determine whether a genuine dispute exists for trial. See 5 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The evidence of the 6 nonmovant is “to be believed, and all justifiable inferences are to be drawn in his favor.” 7 Id. at 255. But if the evidence of the nonmoving party is merely colorable or is not 8 significantly probative, summary judgment may be granted. See id. at 249–50. 9 The Ninth Circuit has held that information contained in an inadmissible form may 10 still be considered for summary judgment if the information itself would be admissible at 11 trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (citing Block v. City of Los 12 Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001) (“To survive summary judgment, a party 13 does not necessarily have to produce evidence in a form that would be admissible at trial, 14 as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56.”)). 15 III. Discussion 16 As an initial matter, Federal Rule of Civil Procedure 4(m) required plaintiff to serve 17 defendant Jo Gentry within 90 days of filing his complaint. Fed. R. Civ. P. 4. Plaintiff has 18 not done so. (ECF No. 23 (summons returned unexecuted as to Gentry)). Plaintiff directs 19 his motion only at defendants Smith and Espino, tacitly abandoning his claims against 20 Gentry. Accordingly, the court finds that Gentry should be, and hereby is, dismissed from 21 this action. 22 The court now turns to the instant motions for summary judgment. After screening 23 his complaint, the court allowed plaintiff to proceed on two claims. (ECF No. 10). The 24 first is an access-to-courts claim against Smith, the second is a retaliation claim against 25 both defendants. The court will address each in turn. 26 A. Access-to-courts claim against Smith 27 Prisoners have a constitutional right to access the courts to litigate non-frivolous 1 518 U.S. 343, 346, 353 n.3, 354–55 (1996). However, the right to access the courts “is 2 ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by 3 being shut out of court.” Christopher v. Harbury, 536 U.S. 403, 415 (2002). Thus, to 4 prevail on an access-to-courts claim, plaintiff must describe both “the underlying cause of 5 action and its lost remedy.” Id. at 416. However, delays in providing legal assistance of 6 materials that “are the product of prison regulations reasonably related to legitimate 7 penological interests . . . are not of constitutional significance, even where they result in 8 actual injury.” Lewis, 518 U.S. at 362. 9 Defendants argue that plaintiff has failed to adduce sufficient evidence to establish 10 that Smith unconstitutionally denied him access to the courts. (ECF No. 51 at 18–19). 11 First, defendants argue that plaintiff does not sufficiently allege or prove that he missed a 12 deadline in another case: 13 Johnson alleges that he missed a deadline, but does not provide any information further than that. Johnson has not provided the case number for the case in which 14 he alleges he missed a deadline nor has he provided any information related to that case. Johnson alleges that he was unable to make copies of documents that would 15 have won him the case, but he never indicates what those documents were. Johnson has not established any actual injury, he has only generally alleged as much. 16 Id. at 18. Further, defendants contend that any delay in providing plaintiff with legal 17 materials was the product of a prison regulation—requiring non-indigent inmates to pay 18 for such materials—that is reasonably related to legitimate penological interests. Id. 19 Finally, defendants aver that Smith did not retaliatorily place plaintiff on 24-hour lockdown 20 because there was an institution-wide lockdown from December 28, 2016, through 21 January 3, 2017. Id. at 19. 22 The court acknowledges that petitioner filed this action pro se, and “the standard 23 practice of federal courts is to interpret filings by pro se litigants liberally and to afford 24 greater latitude as a matter of judicial discretion.” Ricotta v. California, 4 F. Supp. 2d 961, 25 986 (S.D. Cal. 1998). On the other hand, this court “lacks the power to act as a party’s 26 lawyer, even for pro se litigants.” Bias v. Moynihan, 508 F.3d 1212, 1219 (9th Cir. 2007). 27 Indeed, “pro se litigants in an ordinary civil case should not be treated more favorably 1 than parties with attorneys of record.” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 2 1986). Thus, pro se litigants must still “comply with relevant rules of procedural and 3 substantive law.” Faretta v. Cal., 422 U.S. 806, 834 (1975); United States v. Merrill, 746 4 F.2d 458, 465 (9th Cir. 1984) (“A pro se defendant is subject to the same rules of 5 procedure and evidence as defendants who are represented by counsel.”). 6 Accordingly, plaintiff—although he appears pro se—must produce evidence to 7 support his claims if he is to survive summary judgment. First, the court notes that the 8 discovery disputes plaintiff complains of (see ECF No. 43 at 1) have been resolved (ECF 9 No. 49). And plaintiff produces several hundred pages of exhibits to support his claims. 10 (See ECF Nos. 43; 53-1). 11 The court finds that plaintiff’s evidence does not support his claims. Plaintiff 12 provides only his administrative grievances and the responses thereto. (See generally 13 ECF Nos. 43; 53-1). Several responses indicate that he failed to produce evidence to 14 support his complaints. (See, e.g., ECF No. 43 at 31–33, 59, 70–71, 85, 92, 102, 105, 15 107). Other responses clearly explain the reason for the complained-of conduct. See, 16 e.g., id. at 45–46, 70–72, 92, 95, 98). 17 Plaintiff has not produced evidence of his underlying cause of action or his lost 18 remedy. The grievances and defendants’ responses clearly establish that any denial of 19 plaintiff’s access to courts was the result of prison regulations, all of which are reasonably 20 related to the legitimate penological interest of providing legal services to the entirety of 21 SDCC. Such denials and delays are not of a constitutional significance, and plaintiff has 22 not adduced evidence otherwise. 23 Accordingly, the court grants defendants’ motion and denies plaintiff’s motion as 24 to this claim. 25 B. Retaliation claim against both defendants 26 Prisoners have a First Amendment right to file prison grievances and to pursue 27 civil rights litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). 1 To state a viable First Amendment retaliation claim in the prison context, a plaintiff must 2 allege facts sufficient to show: “(1) a state actor took some adverse action against an 3 inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) 4 chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not 5 reasonably advance a legitimate correctional goal.” Id. at 567–68. Total chilling is not 6 required; it is enough if an official’s acts would chill or silence a person of ordinary 7 firmness from future First Amendment activities. Id. at 568–69. 8 To the extent plaintiff’s claim alleges that the conduct purportedly denying him 9 access to the court was retaliatory, the court’s analysis is coterminous with the discussion 10 of plaintiff’s access-to-courts claim. Summary judgment in defendants’ is appropriate as 11 to those claims. 12 The remaining basis of plaintiff’s retaliation claim is that Smith filed a fraudulent 13 NOC against him and then conspired with Espino, who held a hearing on the NOC, to find 14 him guilty thereof. (ECF No. 43). Plaintiff alleges, without providing further proof, that 15 Smith called Espino during the NOC hearing and ordered him to find plaintiff guilty. Id. at 16 7. However, defendants argue that plaintiff was properly cited for failing to appear for his 17 scheduled law library appointment pursuant to attachment C to OP 722. (ECF No. 51 at 18 16). Plaintiff provides no evidence to contravene this argument. 19 Accordingly, plaintiff has failed to prove that defendants took some adverse action 20 against him because he filed grievances, which is First Amendment protected activity. 21 Instead, the evidence conclusively establishes that plaintiff was charged with and found 22 guilty of the NOC for violating OP 722. The court grants summary judgment in 23 defendants’ favor as to this claim. 24 IV. Conclusion 25 Accordingly, 26 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that plaintiff’s motion for 27 summary judgment (ECF No. 43) be, and the same hereby is, DENIED. ' IT IS FURTHER ORDERED that defendants’ countermotion for summary 2 judgment (ECF No. 51) be, and the same hereby is, GRANTED. IT IS FURTHER ORDERED that defendant Jo Gentry be, and the same hereby is, DISMISSED from this action. The clerk is instructed to enter judgment and close the case accordingly. 6 DATED July 13, 2020. 8 Lins CO. Malan 9 UNITED-STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28