Scott v. Michell

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 * * * 4 JAMES EDWARD SCOTT, III, Case No. 3:23-CV-00269-MMD-CLB 5 Plaintiff, REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE1 6 v. [ECF No. 24] 7 MELISSA MICHELL, et al., 8 Defendants. 9 This case involves a civil rights action filed by Plaintiff James Edward Scott, III 10 (“Scott”) against Defendants Melissa Michell and the Nevada Department of Corrections 11 (collectively referred to as “Defendants”). Currently pending before the Court is 12 Defendants’ motion for summary judgment. (ECF No. 24.) On May 5, 2025, the Court 13 gave Scott notice of Defendants’ motion pursuant to the requirements of Klingele v. 14 Eikenberry, 849 F.2d 409 (9th Cir. 1988), and Rand v. Rowland, 154 F.3d 952 (9th Cir. 15 1998). (ECF No. 25.) Scott did not timely file his response, thus the Court sua sponte 16 granted Scott an extension of time to file his response. (ECF No. 26.) To date, Scott has 17 failed to file an opposition to the motion. For the reasons stated below, the Court 18 recommends Defendants’ motion for summary judgment, (ECF No. 24), be granted. 19 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY 20 Scott is formerly an inmate incarcerated in the Nevada Department of Corrections 21 (“NDOC”) and housed at the Northern Nevada Correctional Center (“NNCC”). On June 8, 22 2023, Scott submitted a civil rights complaint under 42 U.S.C. § 1983 alleging he was 23 retaliated against for seeking medical treatment. (ECF No. 1-1.) In this complaint, Scott 24 alleges that he has a kidney condition for which he receives dialysis treatment. (Id. at 4.) 25 Nephrologist Dr. Quigley ordered that all dialysis patients, including Scott, receive a bag 26 of ice daily as part of their treatment. (Id.) Dr. Quigley’s order for medical ice was not set 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 to expire until November 2023. (Id.) But prison medical staff discontinued Dr. Quigley’s 2 order before then. (Id.) 3 On November 17, 2022, Scott alleges he met with Dr. Quigley and prison nurse 4 Melissa Michell for his monthly medical consultation regarding his medical condition and 5 dialysis treatment. (Id.) Scott asked Dr. Quigley to reinstate his order for medical ice. (Id. 6 at 5.) Scott asked Dr. Quigley to make the order just for him based on his own medical 7 needs even Scott knew that Dr. Quigley preferred to issue orders that applied to all 8 dialysis patients, not for each patient individually. (Id.) 9 Scott alleges that on the same day, Michell wrote Scott up on a “trumped up charge 10 of Compromising Staff (a Class A offense).” (Id.) Scott alleges this resulted in him being 11 housed in segregation “for an extended period of time and having his [liberties] placed in 12 jeopardy unduly.” (Id. at 6.) On December 3, 2022, a preliminary hearing was held where 13 Scott pled not guilty to the charge and provided a statement. (ECF No. 24-2 at 3.) On 14 January 31, 2023, Scott was found not guilty of the charge. (Id. at 5.) 15 On December 9, 2022, Scott initiated informal grievance No. 2006-31-46153 16 alleging he was retaliated against for “engag[ing] in activity protected by the Eighth 17 Amendment access to proper and adequate medical treatment.” (ECF No. 24-3 at 50.) 18 On January 3, 2023, Scott’s informal grievance was denied for including more than one issue on his grievance. (Id.) On March 7, 2023, Scott resubmitted his informal grievance. 19 (Id.) On April 3, 2023, the informal grievance was denied for “no harm/loss, action or 20 remedy.” (Id.) On May 9, 2023, Scott again resubmitted his informal grievance. (Id.) On 21 May 30, 2023, Scott’s informal grievance was again denied for “no harm/loss, action or 22 remedy.” (Id.) Scott never raised the grievance beyond the informal level. (Id.) 23 On June 12, 2023, Scott filed suit alleging a First Amendment retaliation claim 24 against Michell, which was allowed proceed following the screening of Scott’s complaint. 25 (ECF Nos. 1-1; 6.) 26 On May 2, 2025, Defendants filed the instant motion arguing summary judgment 27 should be granted in their favor because: (1) Scott failed to exhaust his administrative 1 remedies; and (2) Defendants are entitled to qualified immunity. (ECF No. 24.) Scott’s 2 opposition was due on May 23, 2025, which he did not file. On May 28, 2025, the Court 3 sua sponte extended Scott’s deadline to oppose Defendants’ motion. (ECF No. 26.) To 4 date, however, Scott has not filed an opposition or otherwise responded to Defendants’ 5 motion. 6 II. LEGAL STANDARDS 7 “The court shall grant summary judgment if the movant shows that there is no 8 genuine dispute as to any material fact and the movant is entitled to judgment as a matter 9 of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The 10 substantive law applicable to the claim determines which facts are material. Coles v. 11 Eagle, 704 F.3d 624, 628 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 12 248 (1986)). Only disputes over facts that address the main legal question of the suit can 13 preclude summary judgment, and factual disputes that are irrelevant are not material. 14 Frlekin v. Apple, Inc., 979 F.3d 639, 644 (9th Cir. 2020). A dispute is “genuine” only where 15 a reasonable jury could find for the nonmoving party. Anderson, 477 U.S. at 248. 16 The parties subject to a motion for summary judgment must: (1) cite facts from the 17 record, including but not limited to depositions, documents, and declarations, and then 18 (2) “show[] that the materials cited do not establish the absence or presence of a genuine 19 dispute, or that an adverse party cannot produce admissible evidence to support the fact.” 20 Fed. R. Civ. P. 56(c)(1). Documents submitted during summary judgment must be 21 authenticated, and if only personal knowledge authenticates a document (i.e., even a 22 review of the contents of the document would not prove that it is authentic), an affidavit 23 attesting to its authenticity must be attached to the submitted document. Las Vegas 24 Sands, LLC v. Neheme, 632 F.3d 526, 532-33 (9th Cir. 2011). Conclusory statements, 25 speculative opinions, pleading allegations, or other assertions uncorroborated by facts 26 are insufficient to establish the absence or presence of a genuine dispute. Soremekun v. 27 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 1 genuine dispute. See id. “Where the moving party will have the burden of proof on an 2 issue at trial, the movant must affirmatively demonstrate that no reasonable trier of fact 3 could find other than for the moving party.” Id. However, if the moving party does not bear 4 the burden of proof at trial, the moving party may meet their initial burden by 5 demonstrating either: (1) there is an absence of evidence to support an essential element 6 of the nonmoving party’s claim or claims; or (2) submitting admissible evidence that 7 establishes the record forecloses the possibility of a reasonable jury finding in favor of the 8 nonmoving party. See Pakootas v. Teck Cominco Metals, Ltd., 905 F.3d 565, 593-94 (9th 9 Cir. 2018); Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 10 2000). The court views all evidence and any inferences arising therefrom in the light most 11 favorable to the nonmoving party. Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir. 12 2014). If the moving party does not meet its burden for summary judgment, the nonmoving 13 party is not required to provide evidentiary materials to oppose the motion, and the court 14 will deny summary judgment. Celotex, 477 U.S. at 322-23. 15 Where the moving party has met its burden, however, the burden shifts to the 16 nonmoving party to establish that a genuine issue of material fact actually exists. 17 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, (1986). The 18 nonmoving must “go beyond the pleadings” to meet this burden. Pac. Gulf Shipping Co. 19 v. Vigorous Shipping & Trading S.A., 992 F.3d 893, 897 (9th Cir. 2021) (internal quotation 20 omitted). In other words, the nonmoving party may not simply rely upon the allegations or 21 denials of its pleadings; rather, they must tender evidence of specific facts in the form of 22 affidavits, and/or admissible discovery material in support of its contention that such a 23 dispute exists. See Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586 n. 11. This burden 24 is “not a light one,” and requires the nonmoving party to “show more than the mere 25 existence of a scintilla of evidence.” Matsushita, 475 U.S. at 586 n. 11 (quoting In re 26 Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)). The non-moving party “must 27 come forth with evidence from which a jury could reasonably render a verdict in the non- 1 Litig., 627 F.3d at 387). Mere assertions and “metaphysical doubt as to the material facts” 2 will not defeat a properly supported and meritorious summary judgment motion. 3 Matsushita, 475 U.S. at 586-87. 4 When a pro se litigant opposes summary judgment, his or her contentions in 5 motions and pleadings may be considered as evidence to meet the non-party’s burden to 6 the extent: (1) contents of the document are based on personal knowledge, (2) they set 7 forth facts that would be admissible into evidence, and (3) the litigant attested under 8 penalty of perjury that they were true and correct. Jones v. Blanas, 393 F.3d 918, 923 9 (9th Cir. 2004). 10 Upon the parties meeting their respective burdens for the motion for summary 11 judgment, the court determines whether reasonable minds could differ when interpreting 12 the record; the court does not weigh the evidence or determine its truth. Velazquez v. City 13 of Long Beach, 793 F.3d 1010, 1018 (9th Cir. 2015). The court may consider evidence in 14 the record not cited by the parties, but it is not required to do so. See Fed. R. Civ. P. 15 56(c)(3). Nevertheless, the Court will view the cited records before it and will not mine the 16 record for triable issues of fact. Oracle Corp. Sec. Litig., 627 F.3d at 386 (holding that if a 17 nonmoving party does not make nor provide support for a possible objection, the court 18 will likewise not consider it). 19 III. DISCUSSION 20 Defendants argue summary judgment should be entered because Scott failed to 21 exhaust his administrative remedies prior to filing this lawsuit. (ECF No. 24.) Under the 22 Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison 23 conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in 24 any jail, prison, or other correctional facility until such administrative remedies as are 25 available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is mandatory. See Porter v. 26 Nussle, 534 U.S. 516, 524 (2002). The requirement’s underlying premise is to “reduce 27 the quantity and improve the quality of prisoner suits” by affording prison officials the “time 1 case. In some instances, corrective action taken in response to an inmate’s grievance 2 might improve prison administration and satisfy the inmate, thereby obviating the need 3 for litigation.” Id. at 524-25. 4 The PLRA requires “proper exhaustion” of an inmate’s claims. Woodford v. Ngo, 5 548 U.S. 81, 90 (2006). Proper exhaustion means an inmate must “use all steps the prison 6 holds out, enabling the prison to reach the merits of the issue.” Griffin v. Arpaio, 557 F.3d 7 1117, 1119 (9th Cir. 2009) (citing Woodford, 548 U.S. at 90). Thus, exhaustion “demands 8 compliance with an agency’s deadlines and other critical procedural rules because no 9 adjudication system can function effectively without imposing some orderly structure on 10 the course of its proceedings.” Woodford, 548 U.S. at 90-91. 11 In the Ninth Circuit, a motion for summary judgment will typically be the appropriate 12 vehicle to determine whether an inmate has properly exhausted his or her administrative 13 remedies. Albino v. Baca, 747 F.3d 1162, 1169 (9th Cir. 2014). “If undisputed evidence 14 viewed in the light most favorable to the prisoner shows a failure to exhaust, a defendant 15 is entitled to summary judgment under Rule 56. If material facts are disputed, summary 16 judgment should be denied, and the district judge rather than a jury should determine the 17 facts.” Id. at 1166. The question of exhaustion “should be decided, if feasible, before 18 reaching the merits of a prisoner’s claim.” Id. at 1170. 19 Failure to exhaust is an affirmative defense. Jones v. Bock, 549 U.S. 199, 216 20 (2007). The defendant bears the burden of proving that an available administrative 21 remedy was unexhausted by the inmate. Albino, 747 F.3d at 1172. If the defendant makes 22 such a showing, the burden shifts to the inmate to “show there is something in his case 23 that made the existing and generally available administrative remedies effectively 24 unavailable to him by ‘showing that the local remedies were ineffective, unobtainable, 25 unduly prolonged, inadequate, or obviously futile.’” Williams v. Paramo, 775 F.3d 1182, 26 1191 (9th Cir. 2015) (quoting Albino, 747 F.3d at 1172). 27 /// 1 A. NDOC’s Inmate Grievance System 2 Administrative Regulation (“AR”) 740 governs the grievance process at NDOC 3 institutions. (See ECF No. 24-6.) An inmate must grieve through all three levels: (1) 4 Informal; (2) First Level; and (3) Second Level. (Id. at 11-16.) The inmate may file an 5 informal grievance within six months “if the issue involves personal property damages or 6 loss, personal injury, medical claims or any other tort claims, including civil rights claims.” 7 (Id. at 11.) The inmate’s failure to submit the informal grievance within this period “shall 8 constitute abandonment of the inmate’s grievance at this, and all subsequent levels.” (Id. 9 at 12.) NDOC staff is required to respond within forty-five days. (Id. at 13.) 10 Per AR 740, a grievance at any level may be either, “granted, denied, partially 11 granted, abandoned, duplicate, not accepted or grievable, resolved, settled, withdrawn; 12 or referred to the Office of the Inspector General.” (Id. at 3.) If a grievance is “granted” or 13 resolved by “settlement” at any level, the grievance process is considered complete. (Id. 14 at 6.) However, if a grievance is either “partially granted, denied, or resolved” at any level, 15 the inmate must appeal the response to the next level for the grievance process to be 16 deemed “complete” for purposes of exhausting their administrative remedies. (Id.) 17 The appeal of an informal grievance is called a “First Level Grievance” and must 18 be filed within 5 days of receiving a response. (Id. at 13.) A First Level Grievance should 19 be reviewed, investigated, and responded to by the Warden at the institution where the 20 incident being grieved occurred; however, the Warden may utilize any staff in the 21 development of a grievance response. (Id.) The time limit for a response to the inmate is 22 forty-five days. (Id. at 14.) 23 Within five days of receiving a First Level response, the inmate may appeal to the 24 Second Level Grievance, which is subject to still-higher review. (Id. at 15.) Officials are to 25 respond to a Second Level Grievance within sixty days, specifying the decision and the 26 reasons the decision was reached. (Id.at 15.) Upon receiving a response to the Second 27 Level Grievance, the inmate will be deemed to have exhausted his administrative 1 B. Analysis 2 In this case, Defendants argue Scott failed to properly exhaust his administrative 3 remedies because he did not fully appeal his grievances through all the necessary 4 grievance levels. (ECF No. 24 at 5-11.) To support their arguments, Defendants 5 submitted copies of Scott’s inmate grievance history, including the grievance that relates 6 to the claim at issue in this case—Grievance No. 2006-31-46153. (See ECF No. 24-3 7 (Scott’s Inmate Grievance History).) 8 A careful review of these records supports Defendants’ arguments. Although Scott 9 filed an informal grievance related to alleged incidents of his claim in this case, the 10 grievance was not properly grieved through all three levels as required by AR 740. On 11 December 9, 2022, Scott initiated Informal Grievance No. 2006-31-46153 asserting he was retaliated against by Michell. (See ECF No. 24-3 at 50.) On January 3, 2023, Scott’s 12 informal grievance was denied for including more than one issue on his grievance. (Id.) 13 On March 7, 2023, Scott resubmitted his informal grievance. (Id.) On April 3, 2023, the 14 informal grievance was again denied for “no harm/loss, action or remedy.” (Id.) On May 15 9, 2023, Scott again resubmitted his informal grievance. (Id.) On May 30, 2023, Scott’s 16 informal grievance was again denied for “no harm/loss, action or remedy.” (Id.) Scott 17 never raised the grievance beyond the informal level. (Id.) No other grievances regarding 18 the retaliation claim here was filed. 19 It is well established that the PLRA requires “proper exhaustion” of an inmate’s 20 claims. See Woodford, 548 U.S. at 90. Proper exhaustion means an inmate must “use all 21 steps the prison holds out, enabling the prison to reach the merits of the issue.” Griffin, 22 557 F.3d at 1119 (citing Woodford, 548 U.S. at 90) (emphasis added). Additionally, 23 “proper exhaustion demands compliance with an agency’s deadlines and other critical 24 procedural rules.” Woodford, 548 U.S. at 90. Here, it appears Scott failed to follow all 25 required steps to allow prison officials to reach the merits of the issue as he failed to file 26 any grievance past the informal level related to the claims in this case as required 27 pursuant to AR 740. Accordingly, the Court finds Scott failed to exhaust his administrative 1 remedies pursuant to AR 740 prior to initiating this action. As such, Defendants have met 2 their burden to establish Scott failed to exhaust his administrative remedies in his case. 3 The burden now shifts to Scott “to come forward with evidence showing that there 4 is something in his particular case that made the existing and generally available 5 administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1172 (citing 6 Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 5 (9th Cir. 1996)). However, because 7 Scott did not oppose Defendants’ motion for summary judgment, he provides no evidence 8 to show that administrative remedies were unavailable to him. As stated above, 9 Grievance No. 2006-31-46153 was resubmitted multiple times but never raised beyond 10 the informal level. (ECF No. 24-3 at 50.) Scott does not demonstrate a genuine dispute 11 of material as to whether he properly raised his grievance to the First and Second Level 12 and exhausted the available administrative remedies by failing to prosecute this case and 13 oppose Defendants’ motion for summary judgment. See Albino, 747 F.3d at 1172. 14 Because Scott presents no evidence that administrative remedies were effectively 15 “unavailable,” the Court concludes Scott failed to exhaust available administrative 16 remedies prior to filling this action. Accordingly, the Court recommends Defendants’ 17 motion for summary judgment be granted.2 18 IV. CONCLUSION 19 For the reasons stated above, the Court recommends that Defendants’ motion for 20 summary judgment, (ECF No. 24), be granted. 21 The parties are advised: 22 1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule IB 3-2 of the Local Rules of 23 Practice, the parties may file specific written objections to this Report and 24 Recommendation within fourteen days of receipt. These objections should be entitled 25 “Objections to Magistrate Judge’s Report and Recommendation” and should be 26 accompanied by points and authorities for consideration by the District Court. 27 2 Because the Court finds Scott failed to exhaust his administrative remedies, the 1 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 3 | District Court’s judgment. 4; V. RECOMMENDATION 5 IT IS THEREFORE RECOMMENDED that Defendants’ motion for summary 6 | judgment, (ECF No. 24), be GRANTED. 7 IT IS FURTHER RECOMMENDED that the Clerk ENTER JUDGMENT accordingly and CLOSE this case. 9 DATED: July 2, 2025 » 10 11 10 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4n)