Almy v. Davis et al, No. 2:2012cv00129 - Document 549 (D. Nev. 2020)
Court Description: ORDER granting 543 Motion for Summary Judgment. Signed by Judge Richard F. Boulware, II on 9/9/2020. (Copies have been distributed pursuant to the NEF - DRS)
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Almy v. Davis et al Doc. 549 Case 2:12-cv-00129-RFB-VCF Document 549 Filed 09/09/20 Page 1 of 8 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 5 KEVING ALMY, 6 Case No. 2:12-cv-00129-RFB-VCF Plaintiff, 7 8 ORDER v. 9 10 D. DAVIS, et al., 11 Defendants. 12 13 14 15 16 17 I. INTRODUCTION Before the Court is Defendants’ Motion for Summary Judgment. ECF No. 543. For the reasons discussed below, Defendants’ Motion for Summary Judgment is granted. II. PROCEDURAL BACKGROUND 18 After mandatory screening pursuant to 28 U.S.C. § 1915A, Plaintiff Kevin Almy, 19 20 proceeding pro se in this action, filed an Amended Complaint on April 4, 2012. ECF Nos. 6,9. 21 Following a trial on the merits of some of Plaintiff’s claims, two claims remain for adjudication: 22 (1) an Eighth Amendment conditions of confinement claim against Defendants Tackett, Halling, 23 Henley, Mattice and Warden Smith, and (2) a Fourteenth Amendment claim for deprivation of 24 liberty without due process against Defendant Kennedy. ECF Nos. 9, 461. Defendants filed a 25 26 Motion for Summary Judgment regarding these remaining claims on February 27, 2020. ECF No. 27 543. Plaintiff filed two motions for an extension of time to respond to Defendants’ motion, which 28 this Court granted. ECF Nos. 545-548. Plaintiff had until August 24, 2020 to file a response yet Dockets.Justia.com Case 2:12-cv-00129-RFB-VCF Document 549 Filed 09/09/20 Page 2 of 8 1 2 3 failed to do so. ECF No. 548. III. FACTUAL ALLEGATIONS The Court finds the following facts undisputed in terms of this motion as Plaintiff has not filed 4 5 a response to Defendants’ motion. This case is a pro se civil rights action pursuant to 42 U.S.C. § 6 1983. Plaintiff was an inmate in custody of the Nevada Department of Corrections (“NDOC”) at 7 the time of alleged events, which occurred while he was housed at Warm Springs Correctional 8 Center (“WSCC”). 9 a. Eighth Amendment—Conditions of Confinement 10 11 WSCC officials assigned Plaintiff to WSCC Unit 4B, cell 12 (“4B 12”) on November 28, 2010 12 through December 2, 2010. Plaintiff alleges that while he was in 4B 12 the temperatures were 13 frigid. Defendant Tackett was working Unit 4B at the time and did not perceive and was unaware 14 of “frigid conditions” in cell 4B 12 during the relevant time period. Defendant Mattice reviewed 15 the daily management reports and maintenance records for Unit 4B for the relevant period and 16 17 18 found no evidence to indicate cold temperatures in 4B 12 or a problem with Unit 4B’s heating system. 19 During this period, Plaintiff had access to all the clothing and bed linens that he was entitled 20 to. Tackett provided Plaintiff with one orange jumpsuit, one mattress, one set of sheets, and one 21 blanket. Plaintiff was also able to obtain an additional blanket. Plaintiff did not file a grievance 22 23 regarding inadequate heat or “frigid” winter temperatures in 4B 12, although he filed grievances 24 regarding other issues related to his time in segregation from late November to early December 25 2010. 26 27 b. Fourteenth Amendment—Denial of Due Process Plaintiff alleges that he spent 49 days in administrative segregation—43 days prior to his 28 -2- Case 2:12-cv-00129-RFB-VCF Document 549 Filed 09/09/20 Page 3 of 8 1 Disciplinary Hearing and six days afterwards. Plaintiff alleges that Defendant Kennedy made 2 several procedural errors before, during, and after the Disciplinary Hearing. On August 3, 2011, 3 Plaintiff received Notice of Charges against him for his Disciplinary Hearing, which was more 4 5 than 24 hours before his Hearing on September 11, 2011. During the Hearing, Plaintiff was not 6 allowed to call one witness due to relevancy and redundancy issues. Plaintiff was denied legal 7 counsel for the Hearing; his proposed legal counsels were two “legal-eagle friends,” John Quintaro 8 and Countryman; however, Plaintiff produced no evidence that they were Nevada-licensed 9 attorneys. After the Hearing, Plaintiff received a written statement of evidence relied upon and 10 11 the reasons for taking disciplinary action against him. 12 IV. 13 Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, 14 and admissions on file, together with the affidavits, if any, show “that there is no genuine dispute 15 LEGAL STANDARD as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 16 17 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322(1986). When considering the propriety 18 of summary judgment, the court views all facts and draws all inferences in the light most favorable 19 to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014). 20 However, when the nonmoving party fails to file a point and authorities in response, the court can 21 consider the facts undisputed for the purposes of the motion. Fed.R.Civ.P. 56 (e)(2); Heinemann 22 23 v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013). Failure of the moving party to respond to the 24 motion alone is not sufficient to grant summary judgment under Local Rule 7-2(d). See Martinez 25 v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). Instead, the moving party must still meet its 26 affirmative duty under Fed.R.Civ.P. 56 to demonstrate its entitlement to judgment as a matter of 27 law. Id. Therefore, this Court still must determine whether summary judgement shall be granted 28 -3- Case 2:12-cv-00129-RFB-VCF Document 549 Filed 09/09/20 Page 4 of 8 1 on the merits. 2 V. 3 ANALYSIS a. Exhaustion of Administrative Remedies 4 5 Defendants argue that Plaintiff has not exhausted administrative remedies with respect to his 6 Eight Amendment claim against Defendants, Tackett, Halling, Henley, Mattice and Warden Smith, 7 and thus cannot proceed with a § 1983 action against them. This Court agrees. 8 9 The Prison Litigation Reform Act (PLRA) requires that before bringing a § 1983 action, a prisoner must exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). For exhaustion 10 11 to be proper, the prisoner must proceed through each step of the prison’s grievance procedure. 12 Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (citing Woodford v. Ngo, 548 U.S. 81, 93 13 (2006)). The level of detail needed in a grievance to properly exhaust under the PLRA depends 14 on the applicable grievance procedures of each individual prison. Jones v. Bock, 549 U.S. 199, 15 218 (2007). In the absence of a prison policy or procedure specifying a particular level of detail 16 17 at which grievances must be stated, the Ninth Circuit has held that a grievance is sufficient for 18 exhaustion purposes “if it alerts the prison to the nature of the wrong for which redress is sought.” 19 Griffin, 557 F.3d at 1120 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)). Where an 20 exhaustion defense is raised in a motion for summary judgment, disputed questions of fact should 21 be resolved by the judge rather than the jury. Albino v. Baca, 747 F.3d 1162,1170–71 (9th Cir. 22 23 2014). “If the district judge holds that the prisoner has exhausted available administrative 24 remedies, that administrative remedies are not available, or that a prisoner's failure to exhaust 25 available remedies should be excused, the case may proceed to the merits.” Id. at 1171. “[T]he 26 defendant in a PLRA case must plead and prove nonexhaustion as an affirmative defense.” Albino, 27 747 F.3d at 1171. 28 -4- Case 2:12-cv-00129-RFB-VCF Document 549 Filed 09/09/20 Page 5 of 8 1 NDOC Administrative Regulation (AR) 740 sets forth the grievance procedure applicable to 2 Nevada inmates. There are three levels of grievances within AR 740: an Informal grievance (AR 3 740.08), a First–Level grievance (AR 740.09), and a Second–Level grievance (AR 740.10). Id. at 4 5 11-14. Inmates who are dissatisfied with a decision at a lower level may appeal the decision by 6 filing a higher–level grievance. Once a decision on the merits has been rendered on a Second– 7 Level grievance, the NDOC administrative grievance process is considered exhausted. AR 740 8 also provides the time frame in which a grievance must be filed and provides that an informal 9 grievance must be filed within six months for issues involving personal injury, medical, or any 10 11 other tort claims including civil rights claims. 12 Here, Defendants met their burden by showing that NDOC does have official policies for 13 prison grievance procedures and there is no evidence on the record that Almy submitted any type 14 of grievance regarding “frigid” temperatures in 4B 12. Although Almy did submit grievances 15 regarding inadequate pain treatment while in 4B 12 none of them even remotely discuss being 16 17 subject to “frigid” temperatures. Thus, even submitted grievances regarding Almy’s conditions of 18 confinement were insufficient to “alert the prison to the nature of the wrong for which redress is 19 sought.” Griffin, 557 F.3d at 1120. Therefore, this Court finds that Plaintiff did not exhaust his 20 administrative remedies as to his conditions and confinement claim. 21 b. Deprivation of Due Process 22 23 Defendants argue that the time Plaintiff spent in disciplinary segregation does not constitute 24 an atypical or significant deprivation of liberty and Defendant Kennedy did not violate Plaintiff’s 25 due process rights before, during, and after Plaintiff’s Disciplinary Hearing. This Court agrees. 26 27 In order to state a Fourteenth Amendment due process claim, a plaintiff must adequately allege that he was denied a specified liberty interest and that he was deprived of that liberty interest 28 -5- Case 2:12-cv-00129-RFB-VCF Document 549 Filed 09/09/20 Page 6 of 8 1 without the constitutionally required procedures. Swarthout v. Cooke, 562 U.S. 216, 219 (2011). 2 Such interests may arise from the Constitution itself or from state law. When there is such a liberty 3 interest or property interest, the only other issue is whether the plaintiff was deprived of that 4 5 interest without the constitutionally required procedures. Id. at 861-63. Under the Due Process 6 Clause, an inmate does not have liberty interests related to prison officials’ actions that fall within 7 “the normal limits or range of custody which the conviction has authorized the State to impose.” 8 Sandin v. Conner, 515 U.S. 472, 478 (1995) (citing Meachum v. Fano, 427 U.S. 215, 225 (1976)). 9 The Clause also contains no embedded right of an inmate to remain in prison’s general population. 10 11 Id. at 485–86. 12 State law also may create liberty interests. Where segregated housing or other prison sanctions 13 “impose[ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of 14 prison life[,]” due process protections arise. Sandin, 515 U.S. at 483–84. What matters is not the 15 particular label or characterization of the segregation or sanction, but instead, its “whether 16 17 disciplinary confinement presents the type of atypical, significant deprivation in which a State 18 might conceivable create a liberty interest.” Id. at 486. When conducting the atypical-hardship 19 inquiry, courts examine a “combination of conditions or factors. . . ” Keenan v. Hall, 83 F.3d 20 1083, 1089 (9th Cir. 1996). These include: (1) the extent of difference between segregation and 21 general population; (2) the duration of confinement; and (3) whether the sanction extends the 22 23 length of the prisoner's sentence. See Serrano, 345 F.3d at 1078 (citing and discussing Sandin, 24 515 U.S. at 486–87). That a particular punishment or housing placement is more restrictive than 25 administrative segregation or general population privileges is, alone, not enough. Rather, the Court 26 must consider whether the conditions present an atypical hardship. See Sandin, 515 U.S. at 486 27 (noting that petitioner’s disciplinary segregation although having significant amounts of lockdown 28 -6- Case 2:12-cv-00129-RFB-VCF Document 549 Filed 09/09/20 Page 7 of 8 1 2 3 time was similar to those outside of segregation). Plaintiff’s due process claim is based on the fact that he spent 49 days in segregation for discipline resulting from a Disciplinary Hearing where Defendant Kennedy made numerous 4 5 alleged procedural errors. Aside from the allegations in Plaintiff’s complaint, Almy does not 6 provide any evidence that his placement in segregation was atypical or significant. Moreover, it 7 is unlikely that Almy’s 49 days of segregation would be considered an “aytipical and significant 8 hardship.” See Brown v. Oregon Dept. of Corrections, 751 F.3d 983, 987-88 (9th Cir. 2014) 9 (twenty-seven-month confinement in segregation without meaningful review imposed an atypical 10 11 and significant hardship.) 12 Even if this Court were to assume Almy possessed a liberty interest in his placement in 13 disciplinary segregation, the court also finds that Almy was afforded due process. A review of the 14 notice of charges for the July 28, 2011 incident and the summary of the hearing for the notice of 15 charges, shows that Almy was given a proper hearing before being sentenced to disciplinary 16 17 segregation. Almy was served with the notice of charges within twenty-four hours of the hearing 18 and he was given an opportunity to present evidence and call witnesses. See Wolff v. McDonnell, 19 418 U.S. 539, 563-70, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974) (outlining what prison officials 20 must provide an inmate when a protected liberty interest exists, and inmate faces disciplinary 21 charges). And although Almy was refused counsel despite his request, the refusal was proper. Id. 22 23 at 556 (noting counsel is required only when the inmate is illiterate or the issues presented are 24 legally complex). Accordingly, because the material facts do not demonstrate a deprivation of due 25 process rights, this Court finds that Plaintiff’s Fourteenth Amendment Due Process rights were not 26 violated. 27 28 -7- Case 2:12-cv-00129-RFB-VCF Document 549 Filed 09/09/20 Page 8 of 8 1 2 3 VI. CONCLUSION IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment [543] is GRANTED. 4 5 6 DATED: September 8,2020. 7 ____________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-
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