MIRANDA M. DU, Chief District Judge.
Plaintiff Kevin Almy is a formerly incarcerated person who has filed this pro se prisoner civil rights case against various defendants. Before the Court is a Report and Recommendation of United States Magistrate Judge Carla Baldwin ("R&R") (ECF No. 76) regarding Defendants' Motion for Summary Judgment (the "Motion") (ECF No. 60).
The Court adopts the facts in the R&R (ECF No. 76 at 2-5) and does not recite them here.
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." Id. Where a party fails to object, however, the court is not required to conduct "any review at all. . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection."). Thus, if there is no objection to a magistrate judge's recommendation, then the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 (accepting, without review, a magistrate judge's recommendation to which no objection was filed).
"The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court." Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits "show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See id. at 250-51. "The amount of evidence necessary to raise a genuine issue of material fact is enough `to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).
The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Where the moving party does not have the ultimate burden of persuasion at trial the party can meet its burden of production by either producing evidence that negates an essential element of the nonmoving party's case or by "showing" that the nonmoving party does not have enough evidence to meet an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists," Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.
Defendants object to the R&R on all counts except Count II, III, and most of Count VI.
In the Motion, Defendants argue that Plaintiff failed to exhaust his administrative remedies as to Counts I, V, IX, and X, based on Exhibit 2, which is entitled "Inmate Grievance History." (ECF No. 60 at 8-11; ECF No. 60-2 (Exhibit 2).) See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (holding that failure to exhaust is an affirmative defense that the defendant must plead and prove). However, Judge Baldwin found that Exhibit 2 only contains a summary of NDOC's responses to filed grievances; "it does not establish what Plaintiff actually stated in his grievances in order to permit the court to conclude that NO grievance was actually filed." (ECF No. 76 at 9-10.) The Court agrees with Judge Baldwin.
Defendants' objection insists that Exhibit 2 shows that Plaintiff either failed to properly refile his grievance (on Count I) or failed to file a grievance on an issue altogether (on Counts V, IX and X). (ECF No. 77 at 4-5.) Indeed, it appears that prison officials may have copied and pasted Plaintiff's grievances into boxes titled "Proposed Response" within Exhibit 2 (see, e.g., ECF No. 60-2 at 2), but Plaintiff has attested in his sworn opposition to Defendant's Motion that the document "is not a complete record of every grievance filed by Plaintiff. . . [and] does not present full, accurate verbatim records of Plaintiff's grievances" (ECF No. 70 at 1-2). See Newport v. City of Sparks, No. 3:12-cv-621-MMD-WGC, 2016 WL 1248723, at *3 n.1 (D. Nev. Mar. 28, 2016) (considering a pro se plaintiff's sworn opposition brief when evaluating the defendants' motion for summary judgment).
Defendants also point out that Plaintiff conceded he did not grieve the issue in Counts IX and X. (ECF No. 77 at 6 (citing to ECF No. 70 at 9:22).) But Defendants conveniently omit Plaintiff's sworn statement that prison officials threatened prisoners like him that if they filed a grievance about being co-celled with mentally ill inmates, "they'll be on the next bus to a worse prison." (see id. at 9-10). Plaintiff specified that he was fearful because he already suffered 45 retaliatory transfers and that his upcoming parole hearing might be jeopardized. (Id. at 10.) Under these facts, Plaintiff is excused for failing to exhaust his grievances for Counts IX and X. See McBride v. Lopez, 807 F.3d 982, 984, 987 (9th Cir. 2015) (holding that a "fear of retaliation may be sufficient to render the inmate grievance procedure unavailable" where a prisoner subjectively feared retaliation and such belief was objectively reasonable) The Court therefore overrules Defendants' objection and adopts the R&R on the exhaustion issue.
Defendants argue in the Motion that "Aranas, Baca, Clark, Dreesen, Dzurenda, Gibson, Gutierrez, Hollingsworth, Irvin, Keast, Larsen, Mar, Sanchez, Schrekengost, Tristan, Ward, Wickham, Williams,
First, Defendants argue that Plaintiff has made "bald and conclusory" allegations that Aranas "violated [Plaintiff's] rights by failing to craft a policy or procedure enabling NNCC nurses to access narcotic/narcotic-like medications when needed on weekends or nights." (ECF No. 60 at 15 (citing to ECF No. 15-1 at 29-30); ECF No. 77 at 7 (same).) Plaintiff's sworn opposition brief attested that: (1) Aranas was Plaintiff's treating physician "on multiple occasions" and a grievance responder; (2) Aranas, as Director of NDOC Medical, "would be most responsible for ensuring accessibility of supplies to treat inmate patients"; (3) "medical records corroborate the prescribing of Flexoril on Friday and the failure to dispense until Monday night due to alleged inaccessibility," thereby subjecting Plaintiff to "excruciating pain"; and (4) "Aranas deliberately elected to become a complicitor [sic] in violation by conspiring to deny administrative remedies." (ECF No. 70 at 19.) He makes similar verified allegations in the SAC
Second, Defendants argue that Plaintiff has also made "bald and conclusory allegations" that Aranas, Mar, and Sanchez "were deliberately indifferent to his needs by failing to provide him with a consistent supply of pain medication." (ECF No. 60 at 15 (citing to ECF No. 15-1 at 36); ECF No. 77 at 7-8 (same).) Again, these allegations in the SAC are sufficient to create a material issue of fact as to their personal participation. Accordingly, the Court overrules Defendants' objection.
In determining whether Defendants are entitled to qualified immunity, this Court must decide (1) whether there is a constitutional violation, and (2) whether that right was clearly established at the time of the challenged conduct. See Tortu v. Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1085 (9th Cir. 2009) (citing to Saucier v. Katz, 533 U.S. 194, 201 (2001)). Because Judge Baldwin found "that genuine issues of material fact exist as to whether Almy's constitutional rights were violated, [she] decline[d] to address the `clearly established' prong at this time." (ECF No. 76 at 18.) Defendants objected that, "in order to deny the Motion for Summary Judgment on qualified immunity, both prongs of the test must be satisfied." (ECF No. 77 at 9.) Although the Court agrees with Defendants,
First, Defendants essentially argue in the Motion that there is no evidence they knowingly violated a clearly established right of Plaintiff because Defendants followed the rules, processed his grievances, and provided proper medical care. (ECF No. 60 at 18.) But Defendants failed to support any of their assertions with any evidence, therefore they have failed to meet their burden of production. See Wilson, 2008 WL 4737159, at *2 (citations omitted). Finally, Defendants' objection argues for the first time that Plaintiff does not have a clearly established right as to his claims in Counts I, V, VII, IX, and X (see ECF No. 77 at 9-10. The Court has discretion, but is not required, to consider new arguments raised for the first time in a party's objection to a magistrate judge's ruling. Brown v. Roe, 279 F.3d 742, 7444-46 (9th Cir. 2002). The Court declines to address this argument because doing so now would deprive Plaintiff of an opportunity to respond.
In sum, the Court overrules Defendants' objection adopts the R&R in full.
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of the Motions before the Court.
It is therefore ordered, adjudged and decreed that Judge Baldwin's R&R (ECF No. 76) is accepted and adopted.
It is further ordered that Defendants' Motion for Summary Judgment (ECF No. 60) is denied as to all claims, except the Court grants summary judgment in favor of Aranas on Count VI, and Aranas, Mar, and Sanchez on Count V.
It is further ordered that, although the docket reflects that Defendant Brian Williams, Sr. was terminated from the case in March 2, 2018, this termination was made in error. Defendant Williams is an active party in the case per ECF Nos. 26 and 44. The Clerk is directed to correct the docket and caption to reflect this information.
