Johnson v. Holms, No. 2:2018cv00647 - Document 161 (D. Nev. 2021)

Court Description: ORDER Granting 137 Motion to Dismiss Defendants Cardenas and Pineda. The Court further Grants Defendant's 139 Motion for Summary Judgment The 149 Motion to Strike is Denied, and the 155 Motion to Strike 153 Sur-reply and 154 Supplement is Granted. The Clerk is instructed to close this case. Signed by Judge Gloria M. Navarro on 9/20/2021. (Copies have been distributed pursuant to the NEF - DRS)

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Johnson v. Holms Doc. 161 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 1 of 17 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 ADRIAN JOHNSON, 4 Plaintiff, 5 6 vs. SGT D. HOLMS, et al. 7 Defendants. 8 ) ) ) ) ) ) ) ) ) Case No.: 2:18-cv-00647-GMN-EJY ORDER 9 Pending before the Court is Plaintiff Adrian Johnson’s (“Plaintiff’s”)1 Motion to Dismiss 10 11 Defendants Cardenas and Pineda, (ECF No. 137). Defendants filed a Non-Opposition to 12 Plaintiff’s Motion, (ECF No. 138). Also pending before the Court is Defendants Sergeant Daniel Holm, Sergeant Mark 13 14 Binko, Ryan Heise, Charles Cullina, Michael Murphy, Oscar Cardenas, and Mark Pineda 15 (collectively, “Defendants”), Motion for Summary Judgment, (ECF No. 139). Plaintiff filed a 16 Response, (ECF No. 148), to which Defendants filed a Reply, (ECF No. 150). Plaintiff also 17 filed a Surreply, (ECF No. 153). Also pending before the Court is Defendants’ Motion to Strike Untimely Disclosed 18 19 Exhibits in Plaintiff’s Response to the Motion for Summary Judgment, (ECF No. 149). 20 Plaintiff filed a Response, (ECF No. 151), to which Defendants filed a Reply, (ECF No. 152). 21 22 23 24 25 1 In light of Plaintiff's status as a pro se litigant, the Court has liberally construed his filings, holding them to standards less stringent than formal pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). Page 1 of 17 Dockets.Justia.com Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 2 of 17 Also pending before the Court is Defendants’ Motion to Strike Plaintiff’s Surreply, 1 2 (ECF No. 155). Plaintiff did not file a Response.2 For the reasons discussed below, the Court GRANTS Plaintiff’s Motion to Dismiss, 3 4 GRANTS Defendants’ Motion for Summary Judgment, DENIES Defendants’ Motion to Strike 5 Untimely Disclosed Exhibits, and GRANTS Defendants’ Motion to Strike Plaintiff’s Surreply. 6 I. BACKGROUND This case concerns Defendants’ alleged constitutional violations while Plaintiff was a 7 8 pretrial detainee incarcerated at the Clark County Detention Center (“CCDC”). (See First 9 Amended Compl. (“FAC”), ECF No. 9). On November 11, 2017, Defendant Holmes visited Plaintiff in his housing unit. (Conduct 10 11 Adjustment Report, Ex. I to MSJ, ECF No. 139-9). Defendant Holmes had previously 12 responded to Plaintiff’s multiple grievances, and rather than continuing the written 13 communication, he decided to visit Plaintiff in person to resolve his pending grievances. (Id.). 14 Due to the repetitive and argumentative nature of Plaintiff’s responses, Defendant Holmes 15 instructed inmate to return to his unit. (Id). Plaintiff became increasingly loud and disruptive. 16 (Id.). Defendant Holmes warned Plaintiff that if he did not return to his room immediately, he 17 would be transported to disciplinary housing. (Decl. of Daniel Holm (“Holm Decl.”) ¶ 13, Ex. 18 C to MSJ, ECF No. 139-3). Plaintiff allegedly responded with something to the effect of “it is 19 what it is.” (Id. ¶ 13). Defendant Holmes then instructed Plaintiff to pack his belongings for 20 transport to disciplinary. (Conduct Adjustment Report at 1). Because Plaintiff became louder 21 in his cell, Defendant Holmes instructed him to turn around and handcuffed him without 22 incident. (Id.). Holmes allegedly permitted jail official to “brutalize” Plaintiff in order to place 23 24 25 The Court grants Defendants’ Motion to Strike Plaintiff’s Surreply. Local Rule 7-2 explicit prohibits “supplemental pleadings, briefs, authorities, or evidence without leave of court granted for good cause.” See Dist. Nev. L. Rule 7-2(g). Given that the Court did not grant leave and no good cause is demonstrated, the Court strikes Plaintiff’s Surreply, (ECF No. 153), and Supplement to Surreply, (ECF No. 154). 2 Page 2 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 3 of 17 1 Plaintiff in a disciplinary module for mental and psychiatric inmates. (Id. at 6). Defendant 2 Binko purportedly struck Plaintiff several times in the left cheek with his fist and also 3 smothered Plaintiff’s head while Plaintiff was handcuffed in a kneeling position secured by 4 other officers and while causing no threat to Binko. (Id. at 10). Heise also allegedly pushed 5 Plaintiff’s head into a wall and pulled Plaintiff’s hand far up behind Plaintiff’s back while being 6 handcuffed. (Id. at 12). Garza recorded Binko and Heise allegedly brutalizing Plaintiff on a 7 camcorder but never reported the incident. (Id. at 14). Plaintiff alleges that Defendants Binko 8 and Heise placed in him restraints for retaliation against official misconduct at CCDC. (Id.). 9 Under the instruction of Defendant Holmes, Defendant Cullina entered Plaintiff’s single 10 cell after Plaintiff’s move to disciplinary and removed Plaintiff’s personal property, which 11 purportedly was distributed to other inmates. (Id. at 3). Plaintiff alleges that Defendant Cullina 12 also wrote a false property report claiming that he placed Plaintiff’s belongings in the property 13 intake. (Id.). 14 On December 16, 2017, Defendant Holmes allegedly continued to harass Plaintiff by 15 “mocking, taunting, verbally abusing and sexual verbal abuse” towards Plaintiff. (Id. at 8). 16 Plaintiff alleges that Defendant Heise refused to pick up Plaintiff’s forms; however, picked up 17 other inmates’ forms. (Id. at 13). 18 On December 18, 2017, Defendant Binko purportedly threated Plaintiff with physical 19 harm. (Id. at 11). Defendant Binko allegedly told Plaintiff to “shut the fxxk up” and further 20 threatened to hit Plaintiff if he talked. (Id.). 21 On February 15, 2018, Defendant Holmes transferred Plaintiff to Administrative 22 Segregational Housing. (Id. at 5). That day, Plaintiff witnessed Defendant Holmes mistreat 23 Plaintiff’s cellmate. (Id.). Plaintiff, in response, stated that he would write a complaint 24 regarding Defendant Holmes’ alleged mistreatment of his cellmate. (Id.). Defendant Holmes 25 removed Plaintiff from his cell and placed him in a max unit. (Id.). Page 3 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 4 of 17 From December 28, 2017 through February 15, 2018, Plaintiff alleges that Defendant 1 2 Murphy failed to intervene to stop the ongoing violations even though he knew about them 3 through the grievance process. (Id. at 16). Defendant Murphy also failed to conduct a thorough 4 investigation or intervene. (Id.). On March 22, 2019, Plaintiff filed his Amended Complaint seeking declaratory, 5 6 injunctive, and monetary relief. (FAC at 16, 19). On May 15, 2019, the Court issued its 7 Screening Order, (ECF No. 10), indicating the following claims survived: (1) a First 8 Amendment retaliation claim against Defendants Holmes, Cullina, Binko, Heise, and Garza; (2) 9 a Fourteenth Amendment excessive force claim against Defendants Holmes, Binko, Heise, and 10 Garza; (3) a Fourteenth Amendment due process property claim against Defendants Holmes 11 and Cullina; (4) a Fourteenth Amendment denial of access to the grievance procedure claim 12 against Defendants Holmes and Heise; and (5) a supervisory liability claim against Defendant 13 Murphy. (Screening Order 8:10–19). Plaintiff filed a Motion to Dismiss, which Defendants did 14 not oppose. (See Pl.’s Mot. Dismiss (MTD”), ECF No. 137). Defendants thereafter filed a 15 Motion for Summary Judgment, (ECF No. 139). The Court addresses each motion in turn. 16 II. 17 LEGAL STANDARD The Federal Rules of Civil Procedure provide for summary adjudication when the 18 pleadings, depositions, answers to interrogatories, and admissions on file, together with the 19 affidavits, if any, show that “there is no genuine dispute as to any material fact and the movant 20 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those that 21 may affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 22 (1986). A dispute as to a material fact is genuine if there is a sufficient evidentiary basis on 23 which a reasonable fact-finder could rely to find for the nonmoving party. See id. “The amount 24 of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or 25 judge to resolve the parties’ differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., Page 4 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 5 of 17 1 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 2 288–89 (1968)). “Summary judgment is inappropriate if reasonable jurors, drawing all 3 inferences in favor of the nonmoving party, could return a verdict in the nonmoving party’s 4 favor.” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008) (citing United 5 States v. Shumway, 199 F.3d 1093, 1103–04 (9th Cir. 1999)). A principal purpose of summary 6 judgment is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 7 477 U.S. 317, 323–24 (1986). 8 9 In determining summary judgment, a court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, it must come 10 forward with evidence which would entitle it to a directed verdict if the evidence went 11 uncontroverted at trial. In such a case, the moving party has the initial burden of establishing 12 the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transp. 13 Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000) (citations omitted). In 14 contrast, when the nonmoving party bears the burden of proving the claim or defense, the 15 moving party can meet its burden in two ways: (1) by presenting evidence to negate an 16 essential element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving 17 party failed to make a showing sufficient to establish an element essential to that party’s case 18 on which that party will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323– 19 24. If the moving party fails to meet its initial burden, summary judgment must be denied and 20 the court need not consider the nonmoving party’s evidence. See Adickes v. S.H. Kress & Co., 21 398 U.S. 144, 159–60 (1970). 22 If the moving party satisfies its initial burden, the burden then shifts to the opposing 23 party to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. 24 Zenith Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, 25 the opposing party need not establish a material issue of fact conclusively in its favor. It is Page 5 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 6 of 17 1 sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the 2 parties’ differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors 3 Ass’n, 809 F.2d 626, 631 (9th Cir. 1987). However, the nonmoving party “may not rely on 4 denials in the pleadings but must produce specific evidence, through affidavits or admissible 5 discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 6 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical 7 doubt as to the material facts.” Orr v. Bank of America, 285 F.3d 764, 783 (9th Cir. 2002) 8 (internal citations omitted). “The mere existence of a scintilla of evidence in support of the 9 plaintiff’s position will be insufficient.” Anderson, 477 U.S. at 252. In other words, the 10 nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations 11 that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 12 Instead, the opposition must go beyond the assertions and allegations of the pleadings and set 13 forth specific facts by producing competent evidence that shows a genuine issue for trial. See 14 Celotex Corp., 477 U.S. at 324. 15 At summary judgment, a court’s function is not to weigh the evidence and determine the 16 truth but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249. 17 The evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn 18 in his favor.” Id. at 255. But if the evidence of the nonmoving party is merely colorable or is 19 not significantly probative, summary judgment may be granted. See id. at 249–50. 20 III. DISCUSSION 21 A. Motion to Dismiss, (ECF No. 137) 22 Plaintiff moves to dismiss two defendants, Defendants Cardenas and Pineda. (Pl.’s Mot. 23 Dismiss at 1, ECF No. 137). Defendants filed a Notice of Non-Opposition, (ECF No. 138). 24 Given that “[t]he failure of an opposing party to file points and authorities in response to any 25 motion . . . constitutes a consent to the granting of the motion,” the Court accordingly grants Page 6 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 7 of 17 1 Plaintiff’s Motion to Dismiss. See Dist. Nev. Local R. 7-2(d). Defendants Cardenas and Pineda 2 are accordingly dismissed from the instant cases. 3 B. Motion for Summary Judgment, (ECF No. 139) 4 As explained in the Screening Order, only five of Plaintiff’s claims remain: (1) First 5 Amendment retaliation claim; (2) Fourteenth Amendment excessive force claim; (3) Fourteenth 6 Amendment due process property claim; (4) Fourteenth Amendment denial of access to the 7 grievance procedure claim; and (5) supervisory liability claim. (Screening Order 8:10–19). 8 Defendants move for summary judgment. Specifically, they dispute each of Plaintiff’s claims 9 and further argue that Defendants are otherwise entitled to qualified immunity (Def.’s Motion 10 for Summ. J. (“MSJ”) 15:2–19, ECF No. 139). The Court first addresses Plaintiff’s alleged 11 constitutional violations. i. 12 Section 1983 Claims 13 Section 1983 actions allege a “deprivation of any rights, privileges, or immunities 14 secured by the Constitution and laws.” 42 U.S.C. § 1983. To bring a successful § 1983 claim, a 15 plaintiff must allege (1) a violation of a constitutional right and (2) must show that the alleged 16 violation was committed by “a person acting under color of state law.” West v. Atkins, 487 U.S. 17 42, 49, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). Moreover, § 1983 “‘is not itself a source of 18 substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere 19 conferred.’” Graham v. Connor, 490 U.S. 386, 393—94, 109 S. Ct. 1865, 104 L. Ed. 2d 443 20 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 61 L. Ed. 2d 433 21 (1979)). The Court begins by addressing Plaintiff’s First Amendment Retaliation claim. 22 // 23 // 24 // 25 // Page 7 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 8 of 17 1 2 a. First Amendment Retaliation Claim Plaintiff alleges that Defendants Holmes, Cullina, Binko, Heise, and Garza retaliated 3 against him for filing grievances in violation of the First Amendment. (See FAC at 6, 11); (see 4 also Screening Order 5:14–6:9). Specifically, Plaintiff alleges that Defendants retaliated by 5 conducting a cell extraction and moving him to a mental health ward, filing a false disciplinary 6 report against him, removing his property from his cell and giving it to other inmates, 7 threatening Plaintiff with physical harm, and putting Plaintiff in administrative segregation. 8 (Screening Order 6:5–8). Defendants argue that their actions were not in retaliation to 9 Plaintiff’s grievances, but rather to preserve institutional order, discipline, and security because 10 Plaintiff disobeyed Defendant Holm’s multiple orders to return to his cell. (MSJ 15:20–17:16). 11 Furthermore, Defendants contend that Plaintiff otherwise failed to exhaust all administrative 12 remedies as to his First Amendment retaliation claim. (Reply 12:19–13:2, ECF No. 150). 13 “Prisoners have a First Amendment right to file grievances against prison officials and 14 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012). 15 In the prison context, a claim for First Amendment retaliation under § 1983 must establish five 16 elements: “(1) an assertion that a state actor took some adverse action against an inmate (2) 17 because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s 18 exercise of his First Amendment rights, and (5) the action did not reasonably advance a 19 legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005). 20 To satisfy the “retaliatory motive” element of a retaliation claim, a plaintiff must show 21 that his First Amendment activity was “the ‘substantial’ or ‘motivating’ factor behind the 22 defendant’s conduct.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (quoting 23 Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). The evidence 24 establishing such a motive is often circumstantial, see id., but “mere speculation that defendants 25 acted out of retaliation is not sufficient.” Wood v. Yordy, 753 F.3d 899, 905 (9th Cir. 2014). In Page 8 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 9 of 17 1 Barnett v. Centoni, the Ninth Circuit affirmed the district court’s dismissal of the plaintiff’s 2 retaliation claim on summary judgment. Barnett, 31 F.3d 813, 816 (9th Cir. 1994). There, the 3 officers introduced evidence that the plaintiff was found guilty of possessing inmate 4 manufactured alcohol by a prison disciplinary board. Id. Because there was “some evidence” 5 to support the reclassification, and because the reclassification served the “legitimate 6 penological purpose of maintaining prison discipline,” the Ninth Circuit affirmed dismissal of 7 the plaintiff’s retaliation claim. Id. 8 9 Similarly, Defendants sufficiently provide evidence that Plaintiff’s transfer to disciplinary served a “legitimate penological purpose of maintaining prison discipline.” Id. The 10 Conduct Adjustment Board tried Plaintiff’s case concerning his disciplinary transfer on 11 November 11, 2017 and ultimately found Plaintiff guilty of disrupting/disobeying a direct 12 order. (See Conduct Adjustment Report at 1); (see also Conduct Adjustment Board Hearing 13 Results at 1, Ex. K to MSJ, ECF No. 139-11). As in Barnett, Defendants demonstrate with 14 some evidence that they acted because Plaintiff refused to obey a direct order from the staff. 15 Barnett, 31 F.3d at 816. Plaintiff notably fails to provide additional evidence to support his 16 theory that Defendants moved him to disciplinary in retaliation for filing grievances. Plaintiff’s 17 mere speculation that there is a causal connection is not enough to raise a genuine issue of 18 material fact. See Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996). 19 Accordingly, the Court grants summary judgment to Defendants concerning Plaintiff’s First 20 Amendment Retaliation claim. 21 22 b. Fourteenth Amendment Excessive Force Claim Plaintiff alleges that Defendants Holmes, Binko, Heise, and Garza used unreasonably 23 excessive force on Plaintiff. (See FAC at 6, 10, 12, 14). Specifically, Plaintiff asserts that 24 Officers Binko and Heise punched Plaintiff and pushed his head into the wall while Plaintiff 25 was handcuffed. (See id. at 6, 14). Defendants argue that the video shows that neither Officer Page 9 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 10 of 17 1 Binko nor Officer Heise used excessive force given Plaintiff’s uncooperative behavior during 2 the incident. (MSJ 18:4–12). Moreover, Defendants assert that Plaintiff’s claim fails under the 3 Prison Litigation Reform Act (“PLRA”) because Plaintiff failed to exhaust his administrative 4 remedies. (Id. 18:13–19:5). The Court first addresses whether Plaintiff exhausted his 5 administrative remedies. The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought 6 7 with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a 8 prisoner confined in any jail, prison, or other correctional facility until such administrative 9 remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). The exhaustion requirement in 10 prisoner cases is mandatory. Woodford v. Ngo, 548 U.S. 81, 84, 126 S. Ct. 2378, 165 L. Ed. 2d 11 368 (2006). Further, the PLRA requires “proper exhaustion” of administrative remedies. Id. at 12 93. Proper exhaustion “means that a grievant must use all steps the prison holds out, enabling 13 the prison to reach the merits of the issues.” Griffin v. Arpaio, 557 F.3d 1117, 1119-20 (9th Cir. 14 2009). 15 Courts should decide exhaustion before examining the merits of a prisoner’s claim. 16 Albino v. Baca, 747 F.3d 1162, 1170 (9th Cir. 2014). The defendant bears the initial burden to 17 show that there was an available administrative remedy, and that the prisoner did not exhaust it. 18 Id. at 1169, 1172. Once that showing is made, the burden shifts to the prisoner, who must 19 either demonstrate that he, in fact, exhausted administrative remedies or “come forward with 20 evidence showing that there is something in his particular case that made the existing and 21 generally available administrative remedies effectively unavailable to him.” Id. at 1172. The 22 ultimate burden, however, rests with the defendant. Id. Summary judgment is appropriate if the 23 undisputed evidence, viewed in the light most favorable to the prisoner, shows a failure to 24 exhaust. Id. at 1166, 1168; see Fed. R. Civ. P. 56(a). 25 Page 10 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 11 of 17 1 Defendants’ Motion for Summary Judgment includes a copy of the Clark County 2 Detention Center (“CCDC”) “Standard Operating Procedure” which describes the guidelines 3 and procedures for inmates’ requests and grievances against CCDC staff. (See Inmate 4 Grievance SOP, Ex. B to MSJ, ECF No. 139-2). In order for a plaintiff to exhaust available 5 remedies, CCDC’s SOP encourages the inmate to resolve informally before initiating the 6 grievance process. (Id. at 1). Inmates who cannot informally resolve the issue may file a formal 7 Inmate Request/Grievance Form. (Id. at 2). If the officer cannot resolve the issue, the 8 grievance will be forwarded “through the chain of command for resolution.” (Id.). “The final 9 step in resolution is the Deputy Chief, Detention Services Division (“DSD”).” (Id.). 10 Here, the record is devoid of evidence showing that Plaintiff filed any grievances 11 regarding excessive use of force by Defendants Holmes, Binko, Heise, and Garza. Indeed, as 12 Defendants concisely summarize in their Reply, Plaintiff filed grievances for many other 13 issues, including complaints about missing items, the grievance procedure, officers’ attempts to 14 retaliate against him. (Reply 5:6–6:13). None of these grievances, however, discuss Plaintiff’s 15 alleged Fourteenth Amendment claim of excessive force. (See Inmate Request/Grievance filed 16 on September 25, 2017) (reporting unfair punishment and violations of health and safety 17 procedures); (see Inmate Request/Grievance filed on September 29, 2017) (arguing that the 18 officers retaliated against Plaintiff for filing grievances); (see Inmate Request/Grievance filed 19 on October 15, 2017) (complaining about inhumane treatment). Accordingly, the Court finds 20 that Plaintiff failed to exhaust his administrative remedies and grants summary judgment in 21 favor of Defendants as to the Fourteenth Amendment excessive force claim. 22 c. Fourteenth Amendment Due Process Property Claim 23 Plaintiff alleges that Defendants Holmes and Cullina took Plaintiff’s property during 24 Plaintiff’s transport to disciplinary housing. (FAC at 7). Specifically, Plaintiff claims that 25 Defendants Holmes and Cullina took his commissary items and important legal documentation. Page 11 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 12 of 17 1 (Id. at 15). Defendants argue, in response, that Defendants Holmes and Cullina replaced 2 Plaintiff’s missing commissary and returned his other property. (MSJ 19:13–20:14). Because 3 Defendants remedied the alleged deprivation of property, Defendants assert that they did not 4 violate Plaintiff’s due process rights under the Fourteenth Amendment. (Id.). 5 As to Plaintiff’s commissary items, Defendants did not violate Plaintiff’s due process 6 rights because Defendants replaced his lost items. “[A]n unauthorized intentional deprivation 7 of property by a state employee does not constitute a violation of the procedural requirements 8 of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation 9 remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 3204 10 (1984). The rule in Hudson only applies, however, when the deprivation occurred in a “random 11 and unauthorized manner” and not as a result of “some established state procedure.” Quick v. 12 Jones, 754 F.2d 1521, 1523 (9th Cir. 1985); Parratt v. Taylor, 451 U.S. 527, 541 (1981). 13 Here, Defendant’s escort is not an “established state procedure” that destroyed Plaintiff’s 14 property interest, by operation of law. C.f. Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 15 102 S. Ct. 1148, 1158 (1982) (finding that the deprivation there occurred as a result of a “state 16 system . . . that destroy[ed] a complainant’s property interest, by operation of law, whenever 17 the Commission fail[ed] to convene a timely conference). Defendants’ replacement of his 18 goods thus remedied the alleged due process property violation. Hudson, 468 U.S. at 533. 19 (“For intentional, as for negligent deprivations of property by state employees, the state’s action 20 is not complete until and unless it provides or refuses to provide a suitable postdeprivation 21 remedy.”). Indeed, Defendant Holm testified that he ultimately replaced his items, namely one 22 honeybun, one hot spicy chips, one chicken ramen, one chili ramen, six chili lime shrimp, three 23 beef ramen, and one Baby Ruth. (See Decl. of Daniel Holm (“Holm Decl.” ¶ 32, Ex. C to MSJ, 24 ECF No. 139-3) (“Because we lost his property, his entire last order was replaced and placed in 25 his property locker.”). Page 12 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 13 of 17 As to Plaintiff’s personal belongings, Defendants did not lose his property, but rather, 1 2 placed his property in his designated property locker, pursuant to CCDC policy. (See id. ¶ 33). 3 Indeed, Plaintiff knew his property was temporarily held in his locker, as he requested some 4 items in his locker on several occasions. (See Property Transaction Receipts, Ex. R to MSJ, 5 ECF No. 139-18). Plaintiff additionally fails to provide sufficient facts to support his bare 6 allegations that Defendants distributed his property to other inmates and then filed a false 7 Property Transaction Receipt to cover their tracks. (See Pl.’s Resp. to MSJ 20:18–22). In sum, Defendants did not violate Plaintiff’s due process property rights under the 8 9 Fourteenth Amendment because Defendants did not lose Plaintiff’s property and otherwise 10 remedied the lost property. Accordingly, the Court grants summary judgment in Defendants’ 11 favor. 12 13 d. Fourteenth Amendment Denial of Access Claim Plaintiff alleges that Defendants Holmes and Heise tried to prevent Plaintiff from 14 turning in his grievances, verbally threatening Plaintiff that they would not pick-up his 15 grievances, and refusing to pick up Plaintiff’s grievances at his cell door. (FAC at 8, 13). 16 Defendants claim that Defendants Holmes and Heise did not block Plaintiff from filing 17 grievances. (MSJ 20:15–21:7). Plaintiff, they assert, is not entitled to a specific prison 18 grievance procedure. (Id.). 19 Courts have long held that “prisoners have a constitutional right of access to the courts.” 20 Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 1494 (1977). “The right of meaningful 21 access to the courts extends to established prison grievance procedures.” Bradley v. Hall, 64 22 F.3d 1276, 1279 (9th Cir. 1995). To establish a violation of the right of access to the courts, a 23 prisoner must establish that he or she has suffered “actual injury,” a jurisdictional requirement 24 that flows from the standing doctrine and may not be waived. Lewis v. Casey, 518 U.S. 343, 25 349, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996). An “actual injury” is “actual prejudice with Page 13 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 14 of 17 1 respect to contemplated or existing litigation, such as the inability to meet a filing deadline or to 2 present a claim.” Id. at 348. The actual-injury requirement mandates that an inmate 3 “demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.” Id. at 4 353. 5 Here, Plaintiff fails to provide any evidence that Defendant Holmes and Heise blocked 6 his access to CCDC’s grievance process. Plaintiff’s multiple grievances demonstrate the 7 opposite—that Plaintiff knew about the grievance process and availed himself to the process 8 several times by submitting grievances through CCDC’s formal policy. (Reply 5:6–6:13). 9 Plaintiff also does not provide any facts to support his allegation that Defendants Holmes and 10 Heise verbally threatened Plaintiff. Because no genuine dispute of material fact exists, the 11 Court accordingly grants summary judgment to Defendants as to Plaintiff’s Fourteenth 12 Amendment Denial of Access claim. 13 14 e. Supervisory Liability Claim Plaintiff lastly alleges that Defendant Murphy is liable as a supervisor for failing to 15 intervene in the other alleged constitutional violations. (FAC at 16). Defendants argue that 16 Plaintiff failed to show any constitutional violations. (MSJ 21:8–22:2). Even if there was a 17 constitutional violation, Defendants assert that summary judgment is proper because Plaintiff 18 cannot demonstrate that Defendant Murphy approved the other officers’ decisions. (Id. 22:3–8). 19 “Liability under [§] 1983 arises only upon a showing of personal participation by the 20 defendant. A supervisor is only liable for the constitutional violations of . . . subordinates if the 21 supervisor participated in or directed the violations, or knew of the violations and failed to act 22 to prevent them. There is no respondeat superior liability under [§] 1983.” Taylor v. List, 880 23 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 24 676, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (“Because vicarious liability is inapplicable to 25 Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, Page 14 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 15 of 17 1 through the official’s own individual actions, has violated the Constitution.”); Preschooler II v. 2 Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007) (concluding that allegations 3 that school officials knew of alleged violation and failed to take corrective action were 4 sufficient to state a claim); Ortez v. Washington Cty, Or., 88 F.3d 804, 809 (9th Cir. 1996) 5 (concluding proper to dismiss where no allegations of knowledge of or participation in alleged 6 violation). 7 Here, Defendant Murphy cannot be liable as a supervisor because Defendants did not 8 violate Plaintiff’s constitutional rights, as discussed infra. Plaintiff’s supervisory liability claim 9 fails on this ground alone. For the foregoing reasons, the Court grants Defendant’s Motion for 10 Summary Judgment. 11 C. Motions to Strike Untimely Disclosed Exhibits, (ECF No. 149) 12 Defendants request the Court strike Plaintiff’s exhibits attached to his Response to 13 Defendants’ Motion for Summary Judgment. (See Mot. Strike, ECF No. 149). As a preliminary 14 matter, the Court notes that Defendants’ Motion to Strike is actually a motion for discovery 15 sanctions under Rule 37(c)(1). (See Defs’ Mot. Strike 3:18–5:12). “Under Rule 12(f), a court 16 may strike from a pleading any redundant, immaterial, impertinent, or scandalous matter.” 17 Herb Reed Enterprises, LLC v. Fla. Entm’t Mgmt., Inc., Case No. 2:12-CV-00560-MMD, 2014 18 WL 1305144, at *6 (D. Nev. Mar. 31, 2014). “Motions to strike apply only to pleadings, and 19 courts are generally unwilling to construe the rule broadly and refuse to strike motions, briefs, 20 objections, affidavits, or exhibits attached thereto.” Id. (citation omitted) (denying motion to 21 strike declarations submitted in support of summary judgment motions). Nevertheless, the 22 Court has “inherent power to strike a party’s submissions other than pleadings.” Mazzeo v. 23 Gibbons, No. 2:08-CV-01387-RLH-PA, 2010 WL 3910072, at *3 (D. Nev. Sept. 30, 2010). 24 The Court thus broadly construes Defendants’ Motion to Strike as a motion for discovery 25 sanctions pursuant to Rule 37(c)(1). See also Carisbrook Asset Holding Tr. v. SFR Investments Page 15 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 16 of 17 1 Pool 1, LLC, No. 3:17-CV-00370-MMD-WGC, 2019 WL 2393614, at *2 (D. Nev. June 6, 2 2019). 3 Federal Rule of Civil Procedure 26(a)(1) governs initial disclosures. See Fed. R. Civ. P. 4 26(a). Rule 26(a)(1)(A)(i) requires parties to disclose the name of “each individual . . . that the 5 disclosing party may use to support its claims or defenses” at the outset of a civil suit. 6 Similarly, Rule 26(a)(1)(A)(ii) requires parties to disclose “a copy . . . of all documents . . . that 7 the disclosing party has in its possession, custody, or control and may use to support its claims 8 or defenses.” “Rule 37 ‘gives teeth’ to Rule 26’s disclosure requirements by forbidding the use 9 at trial of any information that is not properly disclosed.” Goodman v. Staples The Office 10 Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) (quoting Yeti by Molly, Ltd., 259 F.3d at 11 1106); Fed. R. Civ. P. 37(c)(1). Rule 37(c)(1) is a “self-executing,” “automatic” sanction 12 designed to provide a strong inducement for disclosure. Yeti by Molly, Ltd., 259 F.3d at 1106 13 (quoting Fed. R. Civ. P. 37 advisory committee’s note (1993)). “The only exceptions to Rule 14 37(c)(1)’s exclusion sanction apply if the failure to disclose is substantially justified or 15 harmless.” Goodman, 644 F.3d at 827; Fed. R. Civ. P. 37(c)(1). 16 Here, Plaintiff’s newly attached exhibits to his Response to Defendants’ Motion for 17 Summary Judgment are harmless. Defendants utilize Plaintiff’s exhibits to advance alternative 18 theories in their Reply. For example, Defendants argue that Plaintiff failed to exhaust all of his 19 administrative remedies as to his retaliation claim. (See Reply 3:3–6:19). Given that 20 Defendants had an opportunity to respond to Plaintiff’s newly-attached exhibits and the Court 21 ultimately dismissed Plaintiff’s excessive force claim based on such evidence, the Court finds 22 that Plaintiff’s failure to disclosure the exhibits did not harm Defendants. Defendants’ Motion 23 to Strike is therefore denied. 24 25 Page 16 of 17 Case 2:18-cv-00647-GMN-EJY Document 161 Filed 09/20/21 Page 17 of 17 1 2 3 4 5 6 7 8 9 IV. CONCLUSION IT IS HEREBY ORDERED that Plaintiff’s Motion to Dismiss Defendants Cardenas and Pineda, (ECF No. 137), is GRANTED. IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment, (ECF No. 139), is GRANTED. IT IS FURTHER ORDERED that Defendants’ Motion to Strike Untimely Disclosed Exhibits, (ECF No. 149), is DENIED. IT IS FURTHER ORDERED that Defendants’ Motion to Strike Plaintiff’s Surreply, (ECF No. 155), is GRANTED. 10 The Clerk of Court is ordered to close the case accordingly. 11 20 day of September, 2021. DATED this _____ 12 13 14 ___________________________________ Gloria M. Navarro, District Judge UNITED STATES DISTRICT COURT 15 16 17 18 19 20 21 22 23 24 25 Page 17 of 17

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