Nasby v. State of Nevada, ex rel. NDOC

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 BRENDAN NASBY, Case No. 3:17-cv-00447-MMD-CLB 7 Plaintiff, ORDER v. 8 JAMES COX, et al., 9 Defendants. 10 11 I. SUMMARY 12 Pro se Plaintiff Brendan Nasby is an inmate currently in the custody of the Nevada 13 Department of Corrections (“NDOC”). Plaintiff filed a complaint under 42 U.S.C. § 1983 14 against Defendants1 alleging denial of meaningful access to the courts due to Plaintiff’s 15 purported inability to access the law libraries at Lovelock Correction Center (“LCC”) and 16 Ely State Prison (“ESP”) in violation of his First and Fourteenth Amendments rights. (ECF 17 No. 49 (“Complaint”).) 18 The parties filed competing motions for summary judgment. (ECF Nos. 85, 95.)2 19 Before the Court is the Report and Recommendation (ECF No. 108 (“R&R”)) of United 20 States Magistrate Judge Carla L. Baldwin. The R&R recommends the Court grant 21 Defendants’ summary judgment motion as Plaintiff is unable to offer evidence to prove 22 Counts I, II, and III of his Complaint. (Id.) Plaintiff objects to Judge Baldwin’s R&R. (ECF 23 No. 111 (“Objection”).) As further explained below, the Court will overrule the Objection. 24 25 1Plaintiff’s Complaint names the following as defendants: The State of Nevada, ex 26 rel., NDOC, et al., James Cox, E.K. McDaniel, Adam Endel, Debra Brooks, Renee Baker, Howard Skolnick, Quentin Byrne, Tara Carpenter, William Sandie, Robert LeGrand, 27 Harold “Mike” Byrne, Adam Watson, and Michael Fletcher (collectively, “Defendants”). (ECF No. 49 at 2.) 28 2The Court has reviewed the summary judgment motions and the corresponding 1 The Court agrees with Judge Baldwin’s analysis that Plaintiff is unable to offer evidence 2 of actual injury and of Defendants’ personal participation in any constitutional deprivation 3 Plaintiff allegedly suffered. The Court therefore adopts Judge Baldwin’s R&R in full. 4 II. BACKGROUND 5 The Court incorporates by reference Judge Baldwin’s recitation of the factual 6 background (ECF No. 108 at 1-4), and does not recite it here. 7 Relevant to this order, Judge Baldwin’s R&R determines that Defendants are 8 entitled to summary judgment on Plaintiff’s Count I involving First Amendment meaningful 9 access to the courts claim. (ECF No. 108 at 6-12.) Judge Baldwin reasoned the following: 10 (1) Plaintiff’s claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994); (2) Plaintiff 11 fails to meet the actual injury threshold for establishing a claim; (3) Plaintiff has not 12 provided sufficient evidence to show the prison’s paging system for lock-down inmates is 13 constitutionally inadequate; and finally (4) Plaintiff fails to show Defendants personally 14 participated in causing any constitutional deprivation Plaintiff allegedly suffered. (Id.)3 15 Judge Baldwin also determines that Defendants are entitled to summary judgment 16 on Plaintiff’s Count I, II, and III involving Fourteenth Amendment due process claims as 17 Plaintiff is unable to show actual injury to establish a cause of action and the claims are 18 additionally barred by Heck. (Id. at 12-13.) 19 Plaintiff disagrees with Judge Baldwin’s recommendations and timely filed his 20 Objection. (ECF No. 111.) 21 III. LEGAL STANDARDS 22 A. Review of the Magistrate Judge’s Recommendation 23 The Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 25 timely objects to a magistrate judge’s report and recommendation, then the Court is 26 27 3The Court agrees with Judge Baldwin’s analysis regarding reasons (1) the Heck 28 bar, and (3) Plaintiff’s lack of evidence to show meaningful access. Further discussion of 1 required to “make a de novo determination of those portions of the [report and 2 recommendation] to which objection is made.” Id. Because of Plaintiff’s Objection to the 3 R&R, the Court has undertaken a de novo review of it, including the underlying briefs. 4 B. Summary Judgment Standard 5 “The purpose of summary judgment is to avoid unnecessary trials when there is 6 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 7 18 F.3d 1468, 1471 (9th Cir. 1994) (citation omitted). Summary judgment is appropriate 8 when the pleadings, the discovery and disclosure materials on file, and any affidavits 9 “show there is no genuine issue as to any material fact and that the movant is entitled to 10 judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing 11 Fed. R. Civ. P. 56(c)). An issue is “genuine” if there is a sufficient evidentiary basis on 12 which a reasonable fact-finder could find for the nonmoving party and a dispute is 13 “material” if it could affect the outcome of the suit under the governing law. Anderson v. 14 Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ 15 on the material facts at issue, however, summary judgment is not appropriate. See id. at 16 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is 17 enough ‘to require a jury or judge to resolve the parties’ differing versions of the truth at 18 trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l 19 Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment 20 motion, a court views all facts and draws all inferences in the light most favorable to the 21 nonmoving party. See Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 22 1103 (9th Cir. 1986) (citation omitted). 23 The moving party bears the burden of showing that there are no genuine issues of 24 material fact. See Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 25 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 26 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 27 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings 28 but must produce specific evidence, through affidavits or admissible discovery material, 1 to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 2 1991), and “must do more than simply show that there is some metaphysical doubt as to 3 the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting 4 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere 5 existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” 6 Anderson, 477 U.S. at 252. 7 IV. DISCUSSION 8 Following a de novo review of the R&R, relevant briefs, and other records in this 9 case, the Court finds good cause to accept and adopt Judge Baldwin’s R&R in full. The 10 Court addresses Plaintiff’s Objection below. 11 A. Actual Injury 12 Judge Baldwin recommends that Defendants’ motion for summary judgment be 13 granted because Plaintiff fails to show actual injury with respect to Count I. (ECF No. 108 14 at 9.) She reasoned that Plaintiff’s belief that Plaintiff would succeed in his post-conviction 15 relief petition was “merely speculative” and was unsupported by evidence. (Id.) Judge 16 Baldwin points to state and federal court cases that have rejected Plaintiff’s law library 17 access arguments. (Id. (citing ECF No. 85 at 85-87, 96-100, 107-109.)) Citing Phillips v. 18 Hust, 477 F.3d 1070 (9th Cir. 2007), Plaintiff appears to counter that to show actual injury, 19 Plaintiff “need only demonstrate that an arguable claim was lost.” (ECF No. 111 at 10 20 (emphasis in original).) The Court is unpersuaded by Plaintiff’s argument and agrees with 21 Judge Baldwin. 22 The Supreme Court has held that a § 1983 litigant must show prison officials’ 23 inadequacies or restrictions to access prison law library and legal assistance has caused 24 the litigant “actual injury.” Lewis v. Casey, 518 U.S. 343, 351-53 (1996). More specifically, 25 the Court stated that a litigant “could demonstrate that a nonfrivolous legal claim had been 26 frustrated or was being impeded.” Id. at 352-53. Plaintiff asserts in his Objection, “[h]ad 27 Nasby been able to discover the Nika case . . . he could have been able to file a timely 28 petition based on Nika and possibly obtained habeas corpus relief.” (ECF No. 111 at 7- 1 8.)4 Plaintiff’s assertion, however, runs up against a decision of the Court of Appeals of 2 the State of Nevada denying his postconviction petition. There, Plaintiff claimed “he had 3 good cause to excuse the procedural bars as a result of inadequate access to legal 4 materials.” (ECF No. 85 at 84.) The Court of Appeals determined that, “[e]ven assuming 5 inadequate access to legal materials” giving Plaintiff good cause “to re-raise the jury 6 instruction issue . . . Nasby cannot demonstrate actual prejudice or a fundamental 7 miscarriage of justice will result from the failure to consider his claims.” (Id. at 86.) 8 Plaintiff’s alleged injury of losing an arguable claim does not satisfy Lewis and is—as 9 Judge Baldwin accurately characterized—merely speculative. Plaintiff therefore cannot 10 demonstrate an actual injury. Moreover, without actual injury, Plaintiff is also unable to 11 establish a cause of action in bringing Counts II and III for Fourteenth Amendment due 12 process violations. The Court thus agrees with Judge Baldwin. 13 B. Personal Participation 14 Judge Baldwin recommends that Defendants’ motion for summary judgment be 15 granted on the additional ground that Plaintiff is unable to show Defendants’ personal 16 participation in any harm allegedly suffered by Plaintiff with respect to Count I. (ECF No. 17 108 at 12.) Plaintiff cites to a Seventh Circuit Court of Appeals case and appears to argue 18 that Defendants meet the personal participation requirement so long as the alleged 19 constitutional violation occurred under Defendants’ direction or Defendants had 20 knowledge or consent. (ECF No. 111 at 17 (citing Gentry v. Duckworth, 65 F.3d 555 (7th 21 Cir. 1995).) Plaintiff further counters that Defendants meet the personal participation 22 requirement if they establish or write regulations that deny meaningful access to the 23 courts. (Id.) The Court does not agree with Plaintiff. 24 The Ninth Circuit Court of Appeals, whose decision binds this Court, has held that 25 § 1983 liability arises “only upon a showing of personal participation by the defendant.” 26 Taylor v. List, 880 F.2d 1040, 1045 (9th Cir 1989). “A supervisor is only liable for 27 28 4See Nika v. State, 198 P.3d 839 (Nev. 2008). 1 || constitutional violations of his subordinates if the supervisor participated in or directed the 2 || violations, or knew of the violations and failed to act to prevent them.” /d. Furthermore, 3 || there is no respondeat superior liability under § 1983. /d. (citing Ybarra v. Renc 4 || Thunderbird Mobile Home Vill., 723 F.2d 675 (9th Cir. 1984)). The Court’s de novo review 5 || of the record confirms Judge Baldwin’s determination that Plaintiff has not provided 6 || sufficient evidence to show Defendants personally participated in any constitutional 7 || deprivation Plaintiff allegedly suffered. The Court thus agrees with Judge Baldwin's 8 || recommendation. 9 V. CONCLUSION 10 The Court notes that the parties made several arguments and cited to several 11 || cases not discussed above. The Court has reviewed these arguments and cases and 12 || determines that they do not warrant discussion as they do not affect the outcome of the 13 || issues before the Court. 14 It is therefore ordered that the Report and Recommendation of Magistrate Judge 15 || Carla L. Baldwin (ECF No. 108) is accepted and adopted in full. 16 It is further ordered that Defendants’ motion for summary judgment (ECF No. 95) 17 || is granted. 18 It is further ordered that Plaintiff's motion for summary judgment (ECF No. 85) is 19 || denied. 20 The Clerk of Court is directed to enter judgment in Defendants’ favor in accordance 21 || with this order and close this case. 22 DATED THIS 30" Day of November 2020. J) — 24 mR MIRANDA M. DU 25 CHIEF UNITED STATES DISTRICT JUDGE 26 27 28