Scott v. Taitano

Opinion

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

4 JAMES EDWARD SCOTT, III, Case No. 3:23-CV-00263-ART-CLB

5 Plaintiff, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v. [ECF No. 38] 7 TAITANO, et al.,

8 Defendants.

9 This case involves a civil rights action filed by Plaintiff James Edward Scott, III 10 (“Scott”) against Defendants Nephi Taitano (“Taitano”), Michal Ortzel (“Ortzel”), Daren 11 Baker (“Baker”), Joshua Collins (“Collins”), Brittany Owens aka Smallwood (“Owens”), 12 and Kristy Fonoimoana (“Fonoimoana”) (collectively referred to as “Defendants”). 13 Currently pending before the Court is Defendants’ motion for summary judgment. (ECF 14 No. 38.) On December 20, 2024, the Court gave Scott notice of Defendants’ motion 15 pursuant to the requirements of Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988), and 16 Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998). (ECF No. 40.) Scott did not timely file his 17 response, thus the Court sua sponte granted Scott an extension of time to file his 18 response. (ECF No. 43.) To date, Scott has failed to file an opposition to the motion. For 19 the reasons stated below, the Court recommends that Defendants’ motion for summary 20 judgment, (ECF No. 38), be granted. 21 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 22 Scott is formerly an inmate incarcerated in the Nevada Department of Corrections 23 (“NDOC”) and housed at the Northern Nevada Correctional Center (“NNCC”). On June 24 12, 2023, Scott submitted a civil rights complaint under 42 U.S.C. § 1983 for events that 25 occurred while Scott was incarcerated at NNCC. (ECF Nos. 1, 1-1.) The claims underlying 26

1 This Report and Recommendation is made to the Honorable Anne R. Traum, 27 United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. 1 this lawsuit relate to Scott’s ability to participate in his Islamic faith while housed at an 2 outside hospital. Specifically, Scott’s complaint states he believes that as part of his faith, 3 he must pray several times a day and purify himself with water before praying. Scott 4 alleges that over a three-day period in August 2022, while housed at an outside hospital, 5 several different corrections officers attempted to or did prevent Scott from praying or 6 performing his pre-prayer rituals. Scott further alleges that prison officials enacted a 7 memorandum requiring that Scott wear full belly, waist, and leg restraints during his 8 prayer activities, which made it difficult for him to participate in those activities. (See ECF 9 No. 5.) 10 On January 16, 2024, the District Court entered a screening order on Scott’s 11 complaint, allowing Scott to proceed on the following claims: (1) First Amendment free 12 exercise; and (2) violation of the Religious Land Use and Institutionalized Persons Act of 13 2000, 42 U.S.C. § 2000 (“RLUIPA”). (ECF No. 4.) Each claim was allowed to proceed 14 against the following Defendants: Taitano, Ortzel, Baker, Collins, Owens, and 15 Fonoimoana. (Id.) 16 On December 19, 2024, Defendants filed the instant motion arguing summary 17 judgment should be granted because: (1) Scott failed to exhaust his administrative 18 remedies; and (2) Defendants are entitled to qualified immunity as Scott cannot establish 19 that any violation occurred and there is no clearly established case that would put 20 Defendants on notice their conduct violated Scott’s rights. (ECF No. 38.) 21 II. LEGAL STANDARDS 22 “The court shall grant summary judgment if the movant shows that there is no 23 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 24 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 25 substantive law applicable to the claim determines which facts are material. Coles v. 26 Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 27 248 (1986)). Only disputes over facts that address the main legal question of the suit can 1 Frlekin v. Apple, Inc., 979 F.3d 639, 644 (9th Cir. 2020). A dispute is “genuine” only where 2 a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 248. 3 The parties subject to a motion for summary judgment must: (1) cite facts from the 4 record, including but not limited to depositions, documents, and declarations, and then 5 (2) “show[] that the materials cited do not establish the absence or presence of a genuine 6 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 7 Fed. R. Civ. P. 56(c)(1). Documents submitted during summary judgment must be 8 authenticated, and if only personal knowledge authenticates a document (i.e., even a 9 review of the contents of the document would not prove that it is authentic), an affidavit 10 attesting to its authenticity must be attached to the submitted document. Las Vegas 11 Sands, LLC v. Neheme, 632 F.3d 526, 532-33 (9th Cir. 2011). Conclusory statements, 12 speculative opinions, pleading allegations, or other assertions uncorroborated by facts 13 are insufficient to establish the absence or presence of a genuine dispute. Soremekun v. 14 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 15 The moving party bears the initial burden of demonstrating an absence of a 16 genuine dispute. Soremekun, 509 F.3d at 984. “Where the moving party will have the 17 burden of proof on an issue at trial, the movant must affirmatively demonstrate that no 18 reasonable trier of fact could find other than for the moving party.” Soremekun, 509 F.3d 19 at 984. However, if the moving party does not bear the burden of proof at trial, the moving 20 party may meet their initial burden by demonstrating either: (1) there is an absence of 21 evidence to support an essential element of the nonmoving party’s claim or claims; or (2) 22 submitting admissible evidence that establishes the record forecloses the possibility of a 23 reasonable jury finding in favor of the nonmoving party. See Pakootas v. Teck Cominco 24 Metals, Ltd., 905 F.3d 565, 593-94 (9th Cir. 2018); Nissan Fire & Marine Ins. Co. v. Fritz 25 Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The court views all evidence and any 26 inferences arising therefrom in the light most favorable to the nonmoving party. Colwell v. 27 Bannister, 763 F.3d 1060, 1065 (9th Cir. 2014). If the moving party does not meet its 1 materials to oppose the motion, and the court will deny summary judgment. Celotex, 477 2 U.S. at 322-23. 3 Where the moving party has met its burden, however, the burden shifts to the 4 nonmoving party to establish that a genuine issue of material fact actually exists. 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986). The 6 nonmoving must “go beyond the pleadings” to meet this burden. Pac. Gulf Shipping Co. 7 v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (internal quotation 8 omitted). In other words, the nonmoving party may not simply rely upon the allegations or 9 denials of its pleadings; rather, they must tender evidence of specific facts in the form of 10 affidavits, and/or admissible discovery material in support of its contention that such a 11 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n. 11. This burden 12 is “not a light one,” and requires the nonmoving party to “show more than the mere 13 existence of a scintilla of evidence.” Id. (quoting In re Oracle Corp. Sec. Litig., 627 F.3d 14 376, 387 (9th Cir. 2010)). The non-moving party “must come forth with evidence from 15 which a jury could reasonably render a verdict in the non-moving party’s favor.” Pac. Gulf 16 Shipping Co., 992 F.3d at 898 (quoting Oracle Corp. Sec. Litig., 627 F.3d at 387). Mere 17 assertions and “metaphysical doubt as to the material facts” will not defeat a properly 18 supported and meritorious summary judgment motion. Matsushita Elec. Indus. Co. v. 19 Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). 20 When a pro se litigant opposes summary judgment, his or her contentions in 21 motions and pleadings may be considered as evidence to meet the non-party’s burden to 22 the extent: (1) contents of the document are based on personal knowledge, (2) they set 23 forth facts that would be admissible into evidence, and (3) the litigant attested under 24 penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 25 (9th Cir. 2004). 26 Upon the parties meeting their respective burdens for the motion for summary 27 judgment, the court determines whether reasonable minds could differ when interpreting 1 of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). The court may consider evidence in 2 the record not cited by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3). 3 Nevertheless, the court will view the cited records before it and will not mine the record 4 for triable issues of fact. Oracle Corp. Sec. Litig., 627 F.3d at 386 (if a nonmoving party 5 does not make nor provide support for a possible objection, the court will likewise not 6 consider it). 7 III. DISCUSSION 8 Defendants argue that summary judgment should be entered because Scott failed 9 to exhaust his administrative remedies prior to filing this lawsuit. (ECF No. 38.) Under the 10 Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison 11 conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in 12 any jail, prison, or other correctional facility until such administrative remedies as are 13 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. Porter v. 14 Nussle, 534 U.S. 516, 524 (2002). The requirement’s underlying premise is to “reduce 15 the quantity and improve the quality of prisoner suits” by affording prison officials the “time 16 and opportunity to address complaints internally before allowing the initiation of a federal 17 case. In some instances, corrective action taken in response to an inmate’s grievance 18 might improve prison administration and satisfy the inmate, thereby obviating the need 19 for litigation.” Id. at 524-25. 20 The PLRA requires “proper exhaustion” of an inmate’s claims. Woodford v. Ngo, 21 548 U.S. 81, 90 (2006). Proper exhaustion means an inmate must “use all steps the prison 22 holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 23 1117, 1119 (9th Cir. 2009) (citing Woodford, 548 U.S. at 90). Thus, exhaustion “demands 24 compliance with an agency’s deadlines and other critical procedural rules because no 25 adjudication system can function effectively without imposing some orderly structure on 26 the course of its proceedings.” Woodford, 548 U.S. at 90–91. 27 In the Ninth Circuit, a motion for summary judgment will typically be the appropriate 1 remedies. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). “If undisputed evidence 2 viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant 3 is entitled to summary judgment under Rule 56. If material facts are disputed, summary 4 judgment should be denied, and the district judge rather than a jury should determine the 5 facts.” Id. at 1166. The question of exhaustion “should be decided, if feasible, before 6 reaching the merits of a prisoner’s claim.” Id. at 1170. 7 Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 8 (2007). The defendant bears the burden of proving that an available administrative 9 remedy was unexhausted by the inmate. Albino, 747 F.3d at 1172. If the defendant makes 10 such a showing, the burden shifts to the inmate to “show there is something in his case 11 that made the existing and generally available administrative remedies effectively 12 unavailable to him by ‘showing that the local remedies were ineffective, unobtainable, 13 unduly prolonged, inadequate, or obviously futile.’” Williams v. Paramo, 775 F.3d 1182, 14 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1172). 15 A. NDOC’s Inmate Grievance System 16 Administrative Regulation (“AR”) 740 governs the grievance process at NDOC 17 institutions. (See ECF No. 38-6.) An inmate must grieve through all three levels: (1) 18 Informal; (2) First Level; and (3) Second Level. (Id. at 11-16.) The inmate may file an 19 informal grievance within six months “if the issue involves personal property damages or 20 loss, personal injury, medical claims or any other tort claims, including civil rights claims.” 21 (Id. at 11.) The inmate’s failure to submit the informal grievance within this period “shall 22 constitute abandonment of the inmate’s grievance at this, and all subsequent levels.” (Id. 23 at 12.) NDOC staff is required to respond within forty-five days. (Id. at 13.) 24 Per AR 740, a grievance at any level may be either, “granted, denied, partially 25 granted, abandoned, duplicate, not accepted or grievable, resolved, settled, withdrawn; 26 or referred to the Office of the Inspector General.” (Id. at 3.) If a grievance is “granted” or 27 resolved by “settlement” at any level, the grievance process is considered complete. (Id. 1 the inmate must appeal the response to the next level for the grievance process to be 2 deemed “complete” for purposes of exhausting their administrative remedies. (Id.) 3 The appeal of an informal grievance is called a “First Level Grievance” and must 4 be filed within 5 days of receiving a response. (Id. at 13.) A First Level Grievance should 5 be reviewed, investigated, and responded to by the Warden at the institution where the 6 incident being grieved occurred; however, the Warden may utilize any staff in the 7 development of a grievance response. (Id.) The time limit for a response to the inmate is 8 forty-five days. (Id. at 14.) 9 Within five days of receiving a First Level response, the inmate may appeal to the 10 Second Level Grievance, which is subject to still-higher review. (Id. at 15.) Officials are to 11 respond to a Second Level Grievance within sixty days, specifying the decision and the 12 reasons the decision was reached. (Id.at 15.) Upon receiving a response to the Second 13 Level Grievance, the inmate will be deemed to have exhausted his administrative 14 remedies and may then file a civil rights complaint in federal court. 15 B. Analysis 16 In this case, Defendants argue Scott failed to properly exhaust his administrative 17 remedies because he did not fully appeal any grievances through all the necessary 18 grievance levels. (ECF No. 38 at 3-5, 7-9.) To support their arguments, Defendants 19 submitted copies of Scott’s inmate grievance history, including the two grievances that 20 relate to the incident at issue in this case—Grievance No. 2006-31-42717 and No. 2006- 21 31-42716. (See ECF No. 38-3 (Scott’s Inmate Grievance History.)) 22 A careful review of these records supports Defendants arguments. Although Scott 23 did file two grievances related to his religious issues, the grievances were deemed 24 “abandoned” and thus were not properly grieved through all three levels required by AR 25 740. On September 12, 2022, Scott initiated Informal Grievance No. 2006-31-42717, 26 which was denied on September 27, 2022. (Id. at 89.) On October 20, 2022, Scott filed 27 his First Level Grievance, which was denied on November 4, 2022. (Id. at 89-90.) On 1 2023 received a response that the Second Level Grievance that Scott had “blacked out 2 the dates on [his] grievance form to reflect a different date from when [he] originally signed 3 them,” and had thus been deemed “abandoned”. (Id. at 90.) On September 12, 2022, 4 Scott also initiated Informal Grievance No. 2006-31-42716, which was denied on 5 September 27, 2022. (Id. at 92.) On October 20, 2022, Scott filed his First Level Grievance 6 and was told to resubmit as he had note provided a justification to continue to the first 7 level and should include all previously submitted grievance documents. (Id. at 92-93.) On 8 December 27, 2022, Scott filed his First Level Grievance and on January 9, 2023 received 9 a response that on the First Level Grievance Scott had “blacked out the dates on [his] 10 grievance form to reflect a different date from when [he] originally signed them,” and had 11 thus been deemed “abandoned”. (Id. at 93.) 12 It is well established that the PLRA requires “proper exhaustion” of an inmate’s 13 claims. See Woodford, 548 U.S. at 90. Proper exhaustion means an inmate must “use all 14 steps the prison holds out, enabling the prison to reach the merits of the issue.” Griffin, 15 557 F.3d at 1119 (citing Woodford, 548 U.S. at 90) (emphasis added). Additionally, 16 “proper exhaustion demands compliance with an agency’s deadlines and other critical 17 procedural rules.” Woodford, 548 U.S. at 90. Here, it appears Scott failed to follow all 18 required steps to allow prison officials to reach the merits of the issue as he failed to file 19 any grievance related to the claims in this case. Accordingly, the Court finds that Scott 20 failed to exhaust his administrative remedies pursuant to NDOC Administrative 21 Regulation 740 prior to initiating this action. As such, Defendants have met their burden 22 to establish that Scott failed to exhaust his administrative remedies in his case. 23 The burden now shifts to Scott “to come forward with evidence showing that there 24 is something in his particular case that made the existing and generally available 25 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172 (citing 26 Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 5 (9th Cir. 1996)). However, because 27 Scott did not oppose Defendants’ motion for summary judgment, he provides no evidence 1 no evidence that administrative remedies were effectively “unavailable,” the Court concludes that Scott failed to exhaust available administrative remedies prior to filling this action. Accordingly, the Court recommends that Defendants’ motion for summary judgment be granted. 5| IV. CONCLUSION 6 For the reasons stated above, the Court recommends that Defendants’ motion for 7 | summary judgment, (ECF No. 38), be granted. 8 The parties are advised: 9 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 10| Practice, the parties may file specific written objections to this Report and Recommendation within fourteen days of receipt. These objections should be entitled “Objections to Magistrate Judge’s Report and Recommendation” and should be | accompanied by points and authorities for consideration by the District Court. 14 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 16 | District Court’s judgment. 17) V. RECOMMENDATION 18 IT IS THEREFORE RECOMMENDED that Defendants’ motion for summary judgment, (ECF No. 38), be GRANTED. 20 IT IS FURTHER RECOMMENDED that the Clerk ENTER JUDGMENT accordingly 21| and CLOSE this case. 22 DATED: March 4, 2025 23 ‘ 24 25 UNITED STATES\MAGISTRATE JUDGE

26 27) 2 Because the Court finds that Scott failed to exhaust his administrative remedies, 28 the Court need not address Defendants’ remaining arguments in favor of summary judgment. oO