Mitchell v. State of Nevada

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 DONALD E. MITCHELL, JR., Case No.: 2:17-cv-00686-APG-DJA 4 Plaintiff Order Granting in Part Defendants’ Motion for Summary Judgment, Denying 5 v. Plaintiff’s Motion to Stay, and Denying Plaintiff’s Motion for Relief 6 STATE OF NEVADA, et al., [ECF Nos. 25, 34, 42] 7 Defendants 8 Plaintiff Donald Mitchell, Jr. sues for two incidents that took place while he was a 9 prisoner in a Nevada Department of Corrections (NDOC) facility. I previously screened 10 Mitchell’s complaint under 28 U.S.C. § 1915A and allowed his Count I retaliation claim and 11 Count II retaliation and due process claims to proceed. Defendants Carrie Alvarado, Timothy 12 Filson, Jerry Howell, Bianca Knight, Dwight Neven, and Perry Russell (collectively, the 13 defendants) move for summary judgment on all remaining claims, arguing that Mitchell has not 14 exhausted his administrative remedies, his claims are without merit, and the defendants are 15 entitled to qualified immunity. Mitchell moves for a stay of this motion and relief from my prior 16 dismissal of defendant Anthony Warren under Federal Rule of Civil Procedure 4(m). 17 Because Mitchell failed to exhaust administrative remedies with respect to his claims 18 arising from the April 25, 2016 incident, I grant the defendants’ motion for summary judgment 19 on Count II. But I deny the defendants’ motion on Count I against defendants Alvarado and 20 Knight because they do not meet their initial summary judgment burden. And I deny Mitchell’s 21 motions because they are moot or futile. 22 / / / / 23 / / / / 1 I. BACKGROUND1 2 Mitchell is an inmate at NDOC’s High Desert State Prison (HDSP). ECF No. 4 at 1. On 3 February 18, 2016, Mitchell and a correctional officer, Alvarado, engaged in a verbal dispute, 4 during which Alvarado cursed out Mitchell. Id. at 4. In response, Mitchell told Alvarado that 5 administrative regulations prohibited unprofessional conduct, and he requested a grievance. Id. at 6 5. Alvarado denied the request, telling Mitchell that he had a “trick for your ass.” Id. Later that 7 day, Mitchell’s inmate classification was reduced from level three to level two and Mitchell was 8 assigned to a cell with a notoriously violent inmate. Id. at 5-6. After Mitchell asked about the 9 reduction, Knight told Mitchell that she hated inmates who filed grievances and referenced 10 Mitchell’s earlier encounter with Alvarado. Id. at 6. Mitchell’s Count I retaliation claim arises 11 out of this incident. 12 Three days later, Mitchell called an unidentified person and told her about the incident. 13 ECF No. 26 at 3 (CD containing audio recording). That person asked Mitchell if he told the 14 NDOC employee responsible for his level reduction about his violent potential cellmate. Id. 15 Mitchell responded by stating “you already know what I did” and “do best.” Id. The other caller 16 responded, “[w]rite it up.” Id. Mitchell then added, “I am going for a retaliation claim saying 17 they put my safety in jeopardy.” Id. 18 Count II of Mitchell’s complaint arises out of another verbal altercation between Mitchell 19 and Knight on April 25, 2016. ECF No. 4 at 8. Shortly after the dispute, Brown asked Mitchell if 20 he had chest pains, explaining that Knight had told Brown that Mitchell was experiencing chest 21 pains. Id. Mitchell denied having chest pains. Id. Knight then filed charges against Mitchell for 22 1 These facts are alleged in Mitchell’s complaint, which was signed under penalty of perjury. 23 ECF No. 4 at 17. Both parties cited the complaint in their respective fact sections. ECF No. 25 at 2-5; ECF No. 29 at 5-8. 1 “Giving False Information” and “Delaying, Hindering, Interfering with Staff.” Id. at 6-7; ECF 2 No. 26 at 16. On June 4, 2016, Mitchell was found guilty on both charges. Id. at 12. 3 Mitchell filed an informal grievance regarding the April 25 incident. Id. at 33. After the 4 informal grievance was denied, Mitchell filed a first-level grievance in July 2016, which was 5 also denied. Id. at 29-30. Mitchell filled out a second-level grievance, which was stamped as 6 received by the HDSP warden on September 5, 2016. Id. at 28. However, the second-level 7 grievance was marked “[r]ejected – [r]e-file” on grounds that Mitchell failed to follow protocols 8 and file the grievance in the grievance box or with a caseworker. Id. at 27-28. The grievance 9 was returned to Mitchell, who signed for the memorandum rejecting the grievance on September 10 19, 2016. Id. While the initial grievance was pending, Mitchell filed another informal grievance 11 relating to the April 25, 2016 incident. Id. at 63. Defendant Howell denied this grievance as 12 duplicative of Mitchell’s first grievance. Id. at 62. 13 In 2018, I issued an order screening Mitchell’s complaint under 28 U.S.C. § 1915A. ECF 14 No. 3. I found that Count I made out a viable retaliation claim against defendants Alvarado and 15 Knight, and against defendants Filson and Bruce Stroud2 based on supervisory liability for their 16 role in responding to Mitchell’s grievances. Id. at 4-6. I also determined that Count II made out 17 viable retaliation and due process claims against defendants Knight, Neven, Russell, and Warren, 18 and against defendants Howell and Stroud based on supervisory liability. Id. at 7-10. Alvarado, 19 Filson, Howell, Knight, Neven, and Russell now move for summary judgment. ECF No. 25. 20 21 2 The defendants state that Bruce Stroud is deceased and not a proper party to this matter. ECF No. 10 at 1 n.1. I order Mitchell to show cause by December 2, 2019 why Stroud should not be 22 dismissed from this matter. Additionally, Stroud and Filson are named only in Count I and only in their supervisory capacities. As discussed below, I grant summary judgment in favor of Filson 23 because he did not personally participate in a constitutional violation. So Mitchell also should explain why maintenance of his action against Stroud would not fail for the same reason. 1 II. DISCUSSION 2 A. Summary Judgment Standard 3 The Federal Rules of Civil Procedure provide for summary adjudication when the 4 pleadings, discovery responses, and affidavits, if any, show that “there is no genuine dispute as 5 to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 6 56(a). Material facts are those that may affect the outcome of the case. See Anderson v. Liberty 7 Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is 8 sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. See id. 9 “Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the 10 nonmoving party, could return a verdict in the nonmoving party’s favor.” Diaz v. Eagle Produce 11 Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United States v. Shumway, 199 F.3d 12 1093, 1103–04 (9th Cir. 1999)). A principal purpose of summary judgment is “to isolate and 13 dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). 14 In determining summary judgment, a court applies a burden-shifting analysis. When the 15 nonmoving party bears the burden of proving the claim or defense, the moving party can meet its 16 burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving 17 party’s case; or (2) by demonstrating that the nonmoving party failed to make a showing 18 sufficient to establish an element essential to that party’s case on which that party will bear the 19 burden of proof at trial. See Celotex, 477 U.S. at 323–24. If the moving party fails to meet its 20 initial burden, summary judgment must be denied and the court need not consider the nonmoving 21 party’s evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). 22 At summary judgment, a court’s function is not to weigh the evidence and determine the 23 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 1 The nonmovant’s evidence is “to be believed, and all justifiable inferences are to be drawn in his 2 favor.” Id. at 255. But if the nonmoving party’s evidence is merely colorable or is not 3 significantly probative, summary judgment may be granted. See id. at 249–50. 4 “Courts should construe liberally motion papers and pleadings filed by pro se inmates 5 and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 F.3d 1144, 6 1150 (9th Cir. 2010). In pro se prisoner cases, summary judgment is disfavored when discovery 7 requests for relevant evidence are pending. See Jones v. Blanas, 393 F.3d 918, 930 (9th Cir. 8 2004) (citing Fed. R. Civ. P. 56(f)). “Summary judgment in the face of requests for additional 9 discovery is appropriate only where such discovery would be ‘fruitless’ with respect to the proof 10 of a viable claim.” Id. (quoting Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988)). 11 B. Exhaustion of Administrative Remedies for Count II 12 The defendants argue that Mitchell failed to exhaust administrative remedies with respect 13 to his claims in Count II of his complaint. ECF No. 25 at 6-8. Mitchell responds that his failure 14 to exhaust is excused by the defendants’ retaliatory conduct and a conspiracy to violate his First 15 Amendment rights. ECF No. 29 at 15. The defendants reply that Mitchell’s numerous 16 grievances demonstrate that NDOC made the grievance process available to him. ECF No. 32 at 17 2; see also ECF No. 27 (Mitchell’s grievance history). 18 Under the Prison Litigation Reform Act (PLRA), “[n]o action shall be brought with 19 respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 20 confined in any jail, prison, or other correctional facility until such administrative remedies as 21 are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion of administrative remedies prior 22 to filing a lawsuit is mandatory. Porter v. Nussle, 534 U.S. 516, 524 (2002). 23 1 The PLRA requires “proper exhaustion” of an inmate’s claims. Woodford v. Ngo, 548 2 U.S. 81, 90 (2006). That means the inmate must “use all steps the prison holds out, enabling the 3 prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). 4 The inmate thus must comply “with an agency’s deadlines and other critical procedural rules 5 because no adjudication system can function effectively without imposing some orderly structure 6 on the course of its proceedings.” Woodford, 548 U.S. at 90-91. 7 Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 (2007). 8 Consequently, the defendants bear the burden of proving the inmate failed to exhaust an 9 available administrative remedy. Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). 10 If the defendants do so, the burden shifts to the inmate to show “there is something particular in 11 his case that made the existing and generally available administrative remedies effectively 12 unavailable to him by showing that the local remedies were ineffective, unobtainable, unduly 13 prolonged, inadequate, or obviously futile.” Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 14 2015) (quotation omitted). The defendants bear the “ultimate burden” of proving a failure to 15 exhaust. Id. 16 NDOC’s grievance process is governed by Administrative Regulation (AR) 740. ECF 17 No. 26 at 77-90. That process has three levels through which the inmate must proceed in order 18 to exhaust: an informal grievance, first level, and second level. Id. Grievances that do not 19 comply with AR 740 must be rejected and returned to the inmate for correction and proper filing. 20 Id. at 81-82. “Each institution/facility shall establish locked boxes where all inmates have access 21 to submit their grievances directly to the box.” Id. at 77. “Grievances will be treated as legal 22 correspondence and will be gathered daily . . . by the [Associate Warden] or designated 23 Grievance Coordinator(s).” Id. And “[i]t is considered an abuse of the inmate grievance 1 procedure when an inmate files a grievance that contains . . . [s]pecific claims or incidents 2 previously filed by the same inmate.” Id. at 86. 3 Mitchell properly filed informal and first-level grievances protesting the April 25, 2016 4 incident. ECF No. 26 at 29-30, 33. His second-level grievance was stamped as received by the 5 warden and rejected with instructions to re-file because he did not file the grievance with his 6 caseworker or in the grievance box. Id. at 27-28. Mitchell did not re-file the second-level 7 grievance. Mitchell had earlier filed a separate grievance relating to this same incident, but it 8 was rejected as duplicative of his initial grievance. Id. at 62-63. The defendants have thus shown 9 Mitchell failed to exhaust administrative remedies by not filing a proper second-level grievance. 10 The burden shifts to Mitchell to show that administrative remedies were effectively unavailable. 11 Mitchell argues that retaliation excuses his failure to exhaust, but he does not explain 12 how the defendants’ conduct made administrative remedies effectively unavailable. Instead, the 13 record shows that Mitchell could have re-filed the rejected second-level grievance but failed to 14 do so. Mitchell’s successful exhaustion of administrative remedies for the February 18, 2016 15 incident also undermines his contention that the defendants’ retaliatory conduct made 16 administrative remedies effectively unavailable. Because no genuine dispute remains that 17 Mitchell failed to exhaust administrative remedies for the April 25, 2016 incident, I grant 18 summary judgment in favor of the defendants on Count II. 19 C. Count I Retaliation Claim 20 The defendants argue that Mitchell’s Count I retaliation claim fails because he does not 21 provide evidence of a retaliatory motive and because a contemporaneous call suggests he 22 fabricated or exaggerated the charges. ECF No. 25 at 8-9. Mitchell argues that the defendants 23 1 retaliated against him for requesting a grievance by reducing his classification level and 2 assigning him to a cell with a violent inmate. ECF No. 29 at 17-18. 3 Prisoners have a First Amendment right to file prison grievances and civil lawsuits and to 4 be free from retaliation for doing so. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005). A 5 First Amendment retaliation claim has five elements. First, the plaintiff must show he engaged 6 in activity protected by the First Amendment. Watison v. Carter, 668 F.3d 1108, 1114-15 (9th 7 Cir. 2012). Second, the plaintiff must show the defendant took adverse action against him. Id. 8 “The adverse action need not be an independent constitutional violation,” and the “mere threat of 9 harm” may suffice. Id. (emphasis and quotation omitted). “Third, the plaintiff must allege a 10 causal connection between the adverse action and the protected conduct.” Id. A close proximity 11 in time between the protected activity and the adverse action “can properly be considered as 12 circumstantial evidence of retaliatory intent.” Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). 13 Fourth, the plaintiff must show that the defendants’ acts “would chill or silence a person 14 of ordinary firmness from future First Amendment activities.” Watison, 668 F.3d at 1114 15 (quotation omitted); see also Jones v. Williams, 791 F.3d 1023, 1036 (9th Cir. 2015) (applying 16 standard on summary judgment). The plaintiff does not have to show that the defendant actually 17 suppressed his speech. Rhodes, 408 F.3d at 568. Evidence “that his First Amendment rights 18 were chilled, though not necessarily silenced, is enough . . . .” Id. at 569. However, the plaintiff 19 must show the harm he suffered was “more than minimal.” Watison, 668 F.3d at 1116 (quotation 20 omitted). Finally, the plaintiff must show that the defendants’ retaliatory acts “did not advance 21 legitimate goals of the correctional institution.” Id. (quotation omitted). 22 The defendants argue that Mitchell offers no evidence of retaliatory intent. But the 23 proximity between Mitchell’s request for a grievance and his level reduction is circumstantial 1 evidence of retaliatory intent. See Pratt, 65 F.3d at 808. And Mitchell alleges a retaliatory 2 motive in his contemporaneous grievances, which the defendants do not rebut with evidence. See 3 ECF No. 28 at 26-27 (February 2016 grievance record). 4 The defendants also argue that the call recording shows that the defendants’ actions did 5 not have a chilling effect on Mitchell’s first amendment rights because he was eager to pursue a 6 retaliation claim. ECF No. 25 at 9. But “[b]ecause it would be unjust to allow a defendant to 7 escape liability for a First Amendment violation merely because an unusually determined 8 plaintiff persists in his protected activity, [Mitchell] does not have to demonstrate that his speech 9 was actually inhibited or suppressed.” Rhodes, 408 F.3d at 569. The recording can also be 10 interpreted as evidence that Mitchell is just such a plaintiff. To overcome summary judgment, 11 Mitchell needs to show only that the defendants’ acts would chill a person of ordinary firmness 12 from future First Amendment activities. A reasonable jury could find that the level reduction 13 and placement with a violent cellmate would chill a reasonable person. Because the defendants 14 do not meet their initial burden on summary judgment, I deny the defendants’ motion on this 15 ground. 16 D. Personal Participation 17 The defendants argue that defendants Filson, Neven, Russell, and Howell are named only 18 in their supervisory capacities and should be dismissed because they did not personally 19 participate in the constitutional violations. ECF No. 25 at 13. Of these, only Filson is named in 20 Count I. Mitchell responds that these defendants personally participated in the due process 21 violations, which he failed to exhaust administratively. ECF No. 29 at 21-24. He does not 22 address personal participation in the Count I retaliation claim. 23 1 A defendant is liable under § 1983 “only upon a showing of personal participation by a 2 defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A supervisor is only liable for 3 constitutional violations of his subordinates if the supervisor participated in or directed the 4 violations, or knew of the violations and failed to prevent them. There is no respondeat superior 5 liability under § 1983.” Id. “A person deprives another ‘of a constitutional right, within the 6 meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, 7 or omits to perform an act which he is legally required to do that causes the deprivation of which 8 [the plaintiff complains].’” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1991) (emphasis in 9 original) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The denial of prisoner 10 grievances alone is insufficient to establish personal participation under 42 U.S.C. § 1983.” West 11 v. Cox, No. 2:15-cv-00665-GMN-VCF, 2018 WL 5114127, at *4 (D. Nev. Oct. 18, 2018) 12 (quotation omitted). But when a defendant becomes aware of a constitutional violation through 13 the grievance process and fails to remedy it, he may be liable under § 1983. See Snow v. 14 McDaniel, 681 F.3d 978, 989 (9th Cir. 2012), overruled on other grounds by Peralta v. Dillard, 15 744 F.3d 1076 (9th Cir. 2014). In Snow, the plaintiff’s grievances made prison officials aware of 16 his serious hip condition and that he was denied a hip replacement, but the prison officials failed 17 to act to prevent further harm. Id. 18 Mitchell’s Count I claim against Filson is based on his response to Mitchell’s grievances 19 protesting the February 18, 2016 incident. Unlike in Snow, the record does not show that Filson 20 was in a position to remedy Alvarado and Knight’s retaliatory conduct, which occurred on the 21 same day of the verbal altercation. Filson was not present when the retaliatory conduct occurred 22 and did not directly oversee Alvarado or Knight. Because Filson did not personally participate in 23 the constitutional violation, I grant the motion for summary judgment in his favor. 1 E. Qualified Immunity 2 The defendants’ qualified immunity arguments largely relate to Count II, which Mitchell 3 failed to exhaust administratively. But the defendants also argue in general terms that all 4 defendants are entitled to qualified immunity “to the extent the liability alleged by Plaintiff 5 consists of advancing legitimate correctional goals.” ECF No. 25 at 16. 6 “Government officials are not entitled to qualified immunity if (1) the facts ‘[t]aken in the 7 light most favorable to the party asserting the injury . . . show [that] the [defendants’] conduct 8 violated a constitutional right’ and (2) the right was clearly established at the time of the alleged 9 violation.” Jones, 791 F.3d at 1033 (quoting Sandoval v. Las Vegas Metro. Police Dep’t, 756 10 F.3d 1154, 1160 (9th Cir. 2014)) (alterations in original). “The law was clearly established [by 11 2016] that correctional officers violate the First Amendment by retaliating against prisoners for 12 exercising the First Amendment right to file prison grievances.” Sawyer v. MacDonald, 768 F. 13 App’x 669, 672 (9th Cir. 2019) (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). 14 Because Mitchell’s claim that the defendants violated a constitutional right by retaliating against 15 him survives and that right is clearly established, I deny defendants’ motion for summary 16 judgment on this ground. 17 F. Motion to Stay Summary Judgment 18 Mitchell moves to stay summary judgment under Rule 56(f)3 pending his motions to 19 compel and extend time for service and discovery, as well as his review of audio recordings cited 20 in the summary judgment motion. ECF No. 34. The defendants respond that Mitchell’s motion 21 22 3 Mitchell requests relief under “Rule 56(f).” ECF No. 34. Rule 56(d) is the proper basis for his 23 motion because “[s]ubdivision (d) carries forward without substantial change the provisions of former subdivision (f).” Fed. R. Civ. P. 56(d) advisory committee’s note to 2010 amendments. 1 is mooted by Magistrate Judge Hoffman’s order addressing his motions and that they sent a copy 2 of the audio recordings to HDSP. ECF No. 36. 3 Magistrate Judge Hoffman granted Mitchell’s motion to extend time and denied his 4 motion to compel in March 2019. ECF No. 35. Mitchell then filed another motion to extend 5 time, which Judge Hoffman denied in May 2019. ECF No. 47. And the defendants provide 6 evidence that they sent the audio recordings to Mitchell. ECF No. 36-1. So I deny Mitchell’s 7 motion to stay summary judgment as moot. 8 G. Motion for Relief From Order Dismissing Warren 9 On April 10, 2019, I dismissed Mitchell’s claims against defendant Anthony Warren 10 under Rule 4(m). ECF No. 37. Mitchell moves for relief from my order, arguing that his 11 placement in solitary confinement excuses his delay. ECF No. 42. Warren is named only in 12 Count II of Mitchell’s complaint, which Mitchell failed to exhaust administratively. Because 13 Mitchell’s claim against Warren would be futile, I deny Mitchell’s motion. 14 III. CONCLUSION 15 I THEREFORE ORDER that the defendants’ motion for summary judgment (ECF No. 16 25) is GRANTED in part. The motion is granted as to Mitchell’s retaliation and due process 17 claims in Count II of his complaint and his retaliation claims in Count I against defendant Filson. 18 The motion is denied as to Mitchell’s retaliation claim in Count I against defendants Alvarado 19 and Knight. 20 I FURTHER ORDER that Mitchell’s motion to stay summary judgment (ECF No. 34) is 21 DENIED as moot. 22 I FURTHER ORDER that Mitchell’s motion for relief from my order dismissing 23 defendant Anthony Warren (ECF No. 42) is DENIED. 1 I FURTHER ORDER Mitchell to show cause in writing by December 2, 2019 why 2|| defendant Stroud should not be dismissed from this matter. If Mitchell fails to do so, I will dismiss Stroud from the case. 4 DATED this 23rd day of October, 2019. fe 6 ANDREW P. GORDON 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 13