Ric'e v. Russell

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 PERCEY LEE RIC’E, Case No. 3:23-CV-00339-MMD-CLB 5 Plaintiff, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v. [ECF No. 31] 7 PERRY RUSSELL, et al., 8 Defendants. 9 This case involves a civil rights action filed by Plaintiff Percey Lee Ric’e (“Ric’e”) 10 against Defendants Perry Russell and Sandra Walker (collectively referred to as 11 “Defendants”). Currently pending before the Court is Defendants’ motion for summary 12 judgment. (ECF No. 31.) Ric’e opposed the motion, (ECF No. 42), and Defendants 13 replied, (ECF No. 45). For the reasons stated below, the Court recommends Defendants’ 14 motion for summary judgment, (ECF No. 31), be granted. 15 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 16 Ric’e is incarcerated in the Nevada Department of Corrections (“NDOC”) and 17 housed at the Northern Nevada Correctional Center (“NNCC”). Ric’e submitted a civil 18 rights complaint under 42 U.S.C. § 1983 alleging claims under the Eighth Amendment, 19 Fourteenth Amendment, Americans with Disabilities Act, and Rehabilitation Act. (ECF 20 Nos. 1, 6.) On March 13, 2024, the Court entered a screening order permitted his claims 21 to proceed against Defendants. (ECF No. 7.) 22 In this complaint, Ric’e states he is elderly and must use a wheelchair to get around 23 and the medications he takes require him to limit his exposure to the sun. (Id. at 4.) Ric’e 24 alleges that on July 11, 2021, at 11:15 a.m. Walker required Ric’e and the other prisoners 25 in his housing unit to be detained on the athletic field for a “shakedown.” (Id. at 4, 9.) Ric’e 26 27 1 This Report and Recommendation is made to the Honorable Miranda M. Du, United States District Judge. The action was referred to the undersigned Magistrate 1 alleges he was detained on the field for over three hours where the temperature exceeded 2 105 degrees and no available bathrooms or shade. (Id.) Ric’e states no one should have 3 been outdoors without protection for over 20 minutes, especially elderly or vulnerable 4 people. (Id. at 5.) 5 Ric’e alleges he suffered “extreme” sunburn and “excessive” headaches from 6 dehydration and being exposed to the heat and direct sunlight. (Id. at 4.) He also alleges 7 he defecated on himself during the incident and he still has migraines and vertigo 8 episodes. (Id.) He further alleges he experienced fever and chills for several days after 9 the July 11 incident. (Id.) Ric’e alleges he did not receive medical treatment. (Id.) Ric’e 10 alleges Russell stated Ric’e and the other prisoners were detained on the athletic field “to 11 make sure you were afforded your yard time” and the “policy of placing inmates [on] the 12 athletic field for unit searches has been ceased[.]” (Id. at 5.) Ric’e further alleges the 13 inmates were told they were being detained on the athletic field, and not in the gym, 14 because prison staff “did not want wheelchairs or walkers on the floor[.]” (Id. at 6) 15 Ric’e alleges another inmate filed an informal grievance regarding the incident on 16 his behalf. (ECF No. 42.) However, according to the admissible evidence submitted by 17 Defendants, Ric’e’s grievance history establishes no grievance regarding the incident was 18 received by the NDOC and filed in the NOTIS system. (ECF No. 31-2.) 19 On March 17, 2025, Defendants filed the instant motion arguing summary 20 judgment should be granted in their favor because: (1) Ric’e failed to exhaust his 21 administrative remedies; and (2) Defendants are entitled to qualified immunity. (ECF No. 22 31.) On April 28, 2025, Ric’e filed his opposition to Defendants’ motion. (ECF no. 42.) On 23 May 19, 2025, Defendants filed their reply to Ric’e’s opposition. (ECF No. 45.) 24 II. LEGAL STANDARDS 25 “The court shall grant summary judgment if the movant shows that there is no 26 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 27 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 1 Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 2 248 (1986)). Only disputes over facts that address the main legal question of the suit can 3 preclude summary judgment, and factual disputes that are irrelevant are not material. 4 Frlekin v. Apple, Inc., 979 F.3d 639, 644 (9th Cir. 2020). A dispute is “genuine” only where 5 a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 248. 6 The parties subject to a motion for summary judgment must: (1) cite facts from the 7 record, including but not limited to depositions, documents, and declarations, and then 8 (2) “show[] that the materials cited do not establish the absence or presence of a genuine 9 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 10 Fed. R. Civ. P. 56(c)(1). Documents submitted during summary judgment must be 11 authenticated, and if only personal knowledge authenticates a document (i.e., even a 12 review of the contents of the document would not prove that it is authentic), an affidavit 13 attesting to its authenticity must be attached to the submitted document. Las Vegas 14 Sands, LLC v. Neheme, 632 F.3d 526, 532-33 (9th Cir. 2011). Conclusory statements, 15 speculative opinions, pleading allegations, or other assertions uncorroborated by facts 16 are insufficient to establish the absence or presence of a genuine dispute. Soremekun v. 17 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 18 The moving party bears the initial burden of demonstrating an absence of a 19 genuine dispute. See id. “Where the moving party will have the burden of proof on an 20 issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact 21 could find other than for the moving party.” Id. However, if the moving party does not bear 22 the burden of proof at trial, the moving party may meet their initial burden by 23 demonstrating either: (1) there is an absence of evidence to support an essential element 24 of the nonmoving party’s claim or claims; or (2) submitting admissible evidence that 25 establishes the record forecloses the possibility of a reasonable jury finding in favor of the 26 nonmoving party. See Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 593-94 (9th 27 Cir. 2018); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 1 favorable to the nonmoving party. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 2 2014). If the moving party does not meet its burden for summary judgment, the nonmoving 3 party is not required to provide evidentiary materials to oppose the motion, and the court 4 will deny summary judgment. Celotex, 477 U.S. at 322-23. 5 Where the moving party has met its burden, however, the burden shifts to the 6 nonmoving party to establish that a genuine issue of material fact actually exists. 7 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986). The 8 nonmoving must “go beyond the pleadings” to meet this burden. Pac. Gulf Shipping Co. 9 v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (internal quotation 10 omitted). In other words, the nonmoving party may not simply rely upon the allegations or 11 denials of its pleadings; rather, they must tender evidence of specific facts in the form of 12 affidavits, and/or admissible discovery material in support of its contention that such a 13 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n. 11. This burden 14 is “not a light one,” and requires the nonmoving party to “show more than the mere 15 existence of a scintilla of evidence.” Matsushita, 475 U.S. at 586 n. 11 (quoting In re 16 Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)). The non-moving party “must 17 come forth with evidence from which a jury could reasonably render a verdict in the non- 18 moving party’s favor.” Pac. Gulf Shipping Co., 992 F.3d at 898 (quoting Oracle Corp. Sec. 19 Litig., 627 F.3d at 387). Mere assertions and “metaphysical doubt as to the material facts” 20 will not defeat a properly supported and meritorious summary judgment motion. 21 Matsushita, 475 U.S. at 586-87. 22 When a pro se litigant opposes summary judgment, his or her contentions in 23 motions and pleadings may be considered as evidence to meet the non-party’s burden to 24 the extent: (1) contents of the document are based on personal knowledge, (2) they set 25 forth facts that would be admissible into evidence, and (3) the litigant attested under 26 penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 27 (9th Cir. 2004). 1 judgment, the court determines whether reasonable minds could differ when interpreting 2 the record; the court does not weigh the evidence or determine its truth. Velazquez v. City 3 of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). The court may consider evidence in 4 the record not cited by the parties, but it is not required to do so. See Fed. R. Civ. P. 5 56(c)(3). Nevertheless, the Court will view the cited records before it and will not mine the 6 record for triable issues of fact. Oracle Corp. Sec. Litig., 627 F.3d at 386 (holding that if a 7 nonmoving party does not make nor provide support for a possible objection, the court 8 will likewise not consider it). 9 III. DISCUSSION 10 Defendants argue summary judgment should be entered because Ric’e failed to 11 exhaust his administrative remedies prior to filing this lawsuit. (ECF No. 31 at 5-6.) Under 12 the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to 13 prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner 14 confined in any jail, prison, or other correctional facility until such administrative remedies 15 as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. See 16 Porter v. Nussle, 534 U.S. 516, 524 (2002). The requirement’s underlying premise is to 17 “reduce the quantity and improve the quality of prisoner suits” by affording prison officials 18 the “time and opportunity to address complaints internally before allowing the initiation of 19 a federal case. In some instances, corrective action taken in response to an inmate’s 20 grievance might improve prison administration and satisfy the inmate, thereby obviating 21 the need for litigation.” Id. at 524-25. 22 The PLRA requires “proper exhaustion” of an inmate’s claims. Woodford v. Ngo, 23 548 U.S. 81, 90 (2006). Proper exhaustion means an inmate must “use all steps the prison 24 holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 25 1117, 1119 (9th Cir. 2009) (citing Woodford, 548 U.S. at 90). Thus, exhaustion “demands 26 compliance with an agency’s deadlines and other critical procedural rules because no 27 adjudication system can function effectively without imposing some orderly structure on 1 In the Ninth Circuit, a motion for summary judgment will typically be the appropriate 2 vehicle to determine whether an inmate has properly exhausted his or her administrative 3 remedies. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). “If undisputed evidence 4 viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant 5 is entitled to summary judgment under Rule 56. If material facts are disputed, summary 6 judgment should be denied, and the district judge rather than a jury should determine the 7 facts.” Id. at 1166. The question of exhaustion “should be decided, if feasible, before 8 reaching the merits of a prisoner’s claim.” Id. at 1170. 9 Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 10 (2007). The defendant bears the burden of proving that an available administrative 11 remedy was unexhausted by the inmate. See Albino, 747 F.3d at 1172. If the defendant 12 makes such a showing, the burden shifts to the inmate to “show there is something in his 13 case that made the existing and generally available administrative remedies effectively 14 unavailable to him by ‘showing that the local remedies were ineffective, unobtainable, 15 unduly prolonged, inadequate, or obviously futile.’” Williams v. Paramo, 775 F.3d 1182, 16 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1172). 17 A. NDOC’s Inmate Grievance System 18 Administrative Regulation (“AR”) 740 governs the grievance process at NDOC 19 institutions. (See ECF No. 31-6.) An inmate must grieve through all three levels: (1) 20 Informal; (2) First Level; and (3) Second Level. (Id. at 11-16.) The inmate may file an 21 informal grievance within six months “if the issue involves personal property damages or 22 loss, personal injury, medical claims or any other tort claims, including civil rights claims.” 23 (Id. at 11.) The inmate’s failure to submit the informal grievance within this period “shall 24 constitute abandonment of the inmate’s grievance at this, and all subsequent levels.” (Id. 25 at 12.) NDOC staff is required to respond within forty-five days. (Id. at 13.) 26 Per AR 740, a grievance at any level may be either, “granted, denied, partially 27 granted, abandoned, duplicate, not accepted or grievable, resolved, settled, withdrawn; 1 resolved by “settlement” at any level, the grievance process is considered complete. (Id. 2 at 6.) However, if a grievance is either “partially granted, denied, or resolved” at any level, 3 the inmate must appeal the response to the next level for the grievance process to be 4 deemed “complete” for purposes of exhausting their administrative remedies. (Id.) 5 The appeal of an informal grievance is called a “First Level Grievance” and must 6 be filed within 5 days of receiving a response. (Id. at 13.) A First Level Grievance should 7 be reviewed, investigated, and responded to by the Warden at the institution where the 8 incident being grieved occurred; however, the Warden may utilize any staff in the 9 development of a grievance response. (Id.) The time limit for a response to the inmate is 10 forty-five days. (Id. at 14.) 11 Within five days of receiving a First Level response, the inmate may appeal to the 12 Second Level Grievance, which is subject to still-higher review. (Id. at 15.) Officials are to 13 respond to a Second Level Grievance within sixty days, specifying the decision and the 14 reasons the decision was reached. (Id.at 15.) Upon receiving a response to the Second 15 Level Grievance, the inmate will be deemed to have exhausted his administrative 16 remedies and may then file a civil rights complaint in federal court. 17 B. Analysis 18 In this case, Defendants argue Ric’e failed to properly exhaust his administrative 19 remedies because he did not fully appeal his grievances through all the necessary 20 grievance levels. (ECF No. 31 at 5-6.) To support their arguments, Defendants submitted 21 copies of Ric’e’s inmate grievance history. (See ECF No. 31-2.) 22 A careful review of these records supports Defendants’ arguments. Ric’e’s 23 grievance history does not include any informal, first level, or second level grievance 24 regarding the alleged incidents. (See id.) It is well established that the PLRA requires 25 “proper exhaustion” of an inmate’s claims. See Woodford, 548 U.S. at 90. Proper exhaustion means an inmate must “use all steps the prison holds out, enabling the prison 26 to reach the merits of the issue.” Griffin, 557 F.3d at 1119 (citing Woodford, 548 U.S. at 27 90) (emphasis added). Additionally, “proper exhaustion demands compliance with an 1 agency’s deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90. Here, 2 it appears Ric’e failed to follow all required steps to allow prison officials to reach the 3 merits of the issue as he failed to file any grievance related to the claims in this case as 4 required pursuant to AR 740. Accordingly, the Court finds Ric’e failed to exhaust his administrative remedies pursuant to AR 740 prior to initiating this action. As such, 5 Defendants have met their burden to establish Ric’e failed to exhaust his administrative 6 remedies in his case. 7 The burden now shifts to Ric’e “to come forward with evidence showing that there 8 is something in his particular case that made the existing and generally available 9 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172 (citing 10 Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)). In his opposition, Ric’e 11 argues he submitted an informal grievance regarding the July 11, 2022 incident. (ECF 12 No. 42 at 2.) He attaches an informal grievance regarding the alleged incident and states 13 that another inmate filed on his behalf. (Id. at 20.) Ric’e asserts he never received a 14 response even though he was in possession of the “pink copy.” (Id. at 2.) 15 Even if the Court assumes that Ric’e properly filed an informal grievance regarding 16 the incident based on the evidence he has submitted, he does not provide any evidence 17 that he attempted to raise the grievance to the first or second level. Purusant to AR 740, 18 even if Ric’e did not receive a response – as he claims – he was still required to raise his 19 grievance to the first and second levels to exhaust his remedies. (ECF No. 31-6 at 6.) Per 20 AR 740, Ric’e was required to “proceed[ed] to the next grievance level [even] if a response 21 [was] overdue.” (See id.) Ric’e has presented no evidence that he properly raised his 22 informal grievance to the first and second level as required by AR 740. Thus, he does not 23 demonstrate a genuine dispute of material as to whether he exhausted the available 24 administrative remedies through the entire administrative process. 25 Because Ric’e presents no evidence that administrative remedies were effectively 26 “unavailable,” the Court concludes Ric’e failed to exhaust available administrative 27 remedies prior to filling this action. See Albino, 747 F.3d at 1172. Accordingly, the Court 4| recommends Defendants’ motion for summary judgment be granted.? 2| IV. CONCLUSION 3 For the reasons stated above, the Court recommends that Defendants’ motion for 4} summary judgment, (ECF No. 31), be granted. 5 The parties are advised: 6 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 7 | Practice, the parties may file specific written objections to this Report and 8 | Recommendation within fourteen days of receipt. These objections should be entitled “Objections to Magistrate Judge’s Report and Recommendation” and should be 10 | accompanied by points and authorities for consideration by the District Court. 11 2. This Report and Recommendation is not an appealable order and any 12 notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the 13 | District Court’s judgment. 14) V. RECOMMENDATION 15 IT IS THEREFORE RECOMMENDED that Defendants’ motion for summary 16 | judgment, (ECF No. 31), be GRANTED. 17 IT IS FURTHER RECOMMENDED that the Clerk ENTER JUDGMENT accordingly and CLOSE this case. 19 DATED: July 9, 2025 : » 20 21 99 UNITED STATES\MAGISTRATE JUDGE 23 24 25 26 27 | —____————— 2 Because the Court finds Ric’e failed to exhaust his administrative remedies, the 28 | Court need not address Defendants’ remaining arguments in favor of summary judgment. oO