Matthews v. Gittere

Opinion

IVAN LEE MATTHEWS, II, Case No.: 3:19-cv-00217-MMD -WGC

Plaintiff Report & Recommendation of United States Magistrate Judge v. Re: ECF No. 21 WILLIAM GITTERE, et. al.,

Defendants

This Report and Recommendation is made to the Honorable Miranda M. Du, Chief United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4. Before the court is Defendants’ Motion for Summary Judgment. (ECF Nos. 21, 21-1 to 21-4, errata with authenticating declarations at ECF Nos. 24-1 to 24-2.) Plaintiff did not file a response.1 After a thorough review, it is recommended that Defendants’ motion be granted. Plaintiff is an inmate in the custody of the Nevada Department of Corrections (NDOC), proceeding pro se with this action pursuant to 42 U.S.C. § 1983. (Am. Compl., ECF No. 11.) The

1 When Plaintiff filed his amended complaint, he was incarcerated within NDOC, but subsequently filed a notice of change of address on West 48th Street in Los Angeles. (ECF No. 17.) Defendants served their motion on Plaintiff at that address. (ECF No. 21 at 11.) Plaintiff did not file a timely response. On August 26, 2021, Plaintiff filed a notice of change of address, indicating a new address at the North County Correctional Facility in Los Angeles. (ECF No. 26.) In an abundance of caution, the court ordered the Clerk to send a copy of Defendants’ briefing to Plaintiff’s new address and extended the time for Plaintiff to file a response to October 21, 2021. (ECF No. 27.) No response was filed. events giving rise to this action took place while Plaintiff was housed at Ely State Prison (ESP). (Id.) The court screened Plaintiff’s amended complaint and allowed him to proceed with several Eighth Amendment conditions of confinement claims. First, Plaintiff was permitted to

proceed with a claim against Reubart based on allegations that Plaintiff informed Reubart the prison showers were not being cleaned, and Reubart ignored Plaintiff. Subsequently, Plaintiff was forced to take a shower in a stall that someone had defecated in. Second, Plaintiff was allowed to proceed with a claim against Reubart, Gittere, Stubbs, Cruz, Butcher and Rowley, based on allegations that: they made him walk through someone else’s blood, they tracked that blood in and out of Plaintiff’s cell, they did not permit Plaintiff to shower for several days to wash the blood off, they did not give Plaintiff any cleaning supplies to remove the blood from his living space, and then they made Plaintiff clean up the blood with his clothing. (ECF No. 11.) Defendant Rowley was subsequently dismissed without prejudice under Federal Rule of Civil Procedure 4(m). (ECF No. 18.)

Defendants move for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies before filing his complaint. The legal standard governing this motion is well settled: a party is entitled to summary judgment when “the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Cartrett, 477 U.S. 317, 330 (1986) (citing Fed. R. Civ. P. 56(c)). An issue is “genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A fact is “material” if it could affect the outcome of the case. Id. at 248 (disputes over facts that might affect the outcome will preclude summary judgment, but factual disputes which are irrelevant or unnecessary are not considered). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. Anderson, 477 U.S. at 250.

“The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Northwest Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted); see also Celotex, 477 U.S. at 323-24 (purpose of summary judgment is "to isolate and dispose of factually unsupported claims"); Anderson, 477 U.S. at 252 (purpose of summary judgment is to determine whether a case "is so one-sided that one party must prevail as a matter of law"). In considering a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir. 2008) (citation omitted); Kaiser Cement Corp. v. Fischbach & Moore Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). That being said, "if the evidence of the nonmoving party "is not significantly probative, summary judgment may be granted." Anderson,

477 U.S. at 249-250 (citations omitted). The court's function is not to weigh the evidence and determine the truth or to make credibility determinations. Celotex, 477 U.S. at 249, 255; Anderson, 477 U.S. at 249. In deciding a motion for summary judgment, the court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, ‘it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.’… In such a case, the moving party has the initial burden of establishing the absence of a genuine [dispute] of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party cannot establish an element essential to that party’s case on which that party will have the

burden of proof at trial. See Celotex Corp. v. Cartrett, 477 U.S. 317, 323-25 (1986). If the moving party satisfies its initial burden, the burden shifts to the opposing party to establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The opposing party need not establish a genuine dispute of material fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (quotation marks and citation omitted). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. Matsushita, 475 U.S. at 587. Instead, the opposition must go beyond the assertions and allegations of the

pleadings and set forth specific facts by producing competent evidence that shows a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324. The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). An inmate must exhaust his administrative remedies irrespective of the forms of relief sought and offered through administrative avenues. Booth v. Churner, 532 U.S. 731, 741 (2001). "If undisputed evidence viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56. If material facts are disputed, summary judgment should be denied, and the district judge rather than a jury should determine the facts [in a preliminary proceeding]." Albino v. Baca, 747 F.3d 1162, 1168, 1170-

71 (citations omitted). Once a defendant shows that the plaintiff did not exhaust available administrative remedies, the burden shifts to the plaintiff "to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id. at 1172 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 5 (9th Cir. 1996)); Draper v. Rosario, 836 F.3d 1072, 1080 (9th Cir. 2016) (inmate plaintiff did not meet his burden when he failed to identify any actions prison staff took that impeded his ability to exhaust his administrative remedies, or otherwise explain why he failed to comply with the administrative remedies process)). The ultimate burden of proof, however, remains with the defendant. Id.

An inmate within NDOC exhausts administrative remedies by utilizing NDOC’s grievance process, which is governed by Administrative Regulation (AR) 740. AR 740 requires an inmate to proceed through three levels to complete the grievance process: informal, first, and second levels. (ECF Nos. 21-2, 21-3, 21-4.) An inmate must file an informal level grievance within six months if the issue involves a civil rights claim. (Id.) Plaintiff’s inmate grievance history reveals that Plaintiff did not file a grievance about the alleged unsanitary conditions in the shower facilities or related to the blood issues raised in his complaint. (ECF No. 21-1.) Therefore, Defendants are entitled to summary judgment due to Plaintiff’s failure to exhaust his administrative remedies. IT IS HEREBY RECOMMENDED that the District Judge enter an order GRANTING Defendants’ motion for summary judgment (ECF No. 21). The parties should be aware of the following: 5 1. That they may file, pursuant to 28 U.S.C. § 636(b)(1)(C), specific written objections to 6] this Report and Recommendation within fourteen days of being served with a copy of the Report 7\| and Recommendation. These objections should be titled “Objections to Magistrate Judge’s 8] Report and Recommendation” and should be accompanied by points and authorities for 9] consideration by the district judge. 2. That this Report and Recommendation is not an appealable order and that any notice of 11] appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment by the district court. Dated: October 25, 2021 bit G. Cott William G. Cobb United States Magistrate Judge