Reed v. Dzurenda et al, No. 2:2019cv00172 - Document 95 (D. Nev. 2022)
Court Description: ORDER denying 69 Motion in Limine; ORDER denying 70 Motion in Limine; ORDER granting in part and denying in part 75 Motion for Summary Judgment; ORDER granting 76 Motion; Re: 69 Motion in Limine, 70 Motion in Limine, 75 Motion for Summary Judgment, 76 Motion Signed by District Judge Anne R. Traum on 12/22/2022. (Copies have been distributed pursuant to the NEF - LG)
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Reed v. Dzurenda et al Doc. 95 Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 1 of 10 1 2 UNITED STATES DISTRICT COURT 3 4 5 DISTRICT OF NEVADA DAVID LEVOYD REED, 6 7 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER JAMES DZURENDA, et al., Defendants. 9 11 Plaintiff, v. 8 10 Case No. 2:19-cv-00172-ART-NJK Plaintiff David Levoyd Reed, proceeding pro se, brings this action for excessive use of force and for First Amendment retaliation against Defendant Officer Ted Nielson of High Desert State Prison (“HDSP”). (ECF Nos. 7, 8.) Before the Court are: (1) Plaintiff’s motion in limine to exclude evidence regarding disciplinary history (“first motion in limine”) (ECF No. 69); (2) Plaintiff’s motion in limine to exclude evidence regarding convictions (“second motion in limine”) (ECF No. 70); (3); Officer Nielson’s motion for summary judgment (ECF No. 75); and (4) Officer Nielson’s motion for leave to file declaration in camera and under seal (ECF No. 76). For the reasons set forth in this order, the Court denies Plaintiff’s motions in limine without prejudice as premature, grants Officer Nielson’s motion for leave to file under seal as unopposed, and grants in part and denies in part Officer Nielson’s motion for summary judgment. I. AMENDED COMPLAINT Plaintiff filed his Complaint, along with an Application for Leave to Proceed In Forma Pauperis, with the Court on January 28, 2019, and his Amended Complaint on July 10, 2019. (ECF Nos. 1, 7.) Plaintiff brought claims for Eighth Amendment excessive force and deliberate indifference to serious medical needs, Fourteenth Amendment due process, First Amendment retaliation, conspiracy under 42 U.S.C. § 1985(3), state law criminal statutes, intentional infliction of 1 Dockets.Justia.com Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 2 of 10 1 emotional distress, negligence, and under the Nevada Tort Claim Act, against 2 Nevada Department of Corrections (“NDOC”) Director James Dzurenda, Officer 3 Nielson, Associate Warden Jennifer Nash, a Doe nurse, a Doe transportation 4 correctional officer “K”, and the HDSP Inspector General. (ECF No. 7 (“Amended 5 Complaint”).) The Court issued a screening order on November 18, 2019, which 6 allowed Plaintiff’s excessive force claim to proceed against Officer Nielson and the 7 Doe officer and Plaintiff’s First Amendment retaliation claim to proceed against 8 Officer Nielson. (ECF No. 8 at 11-12.) 9 According to the Amended Complaint, on December 6, 2017, after 10 attending court, Plaintiff was standing in the Clark County Detention Center’s 11 court holding rotunda. (Amended Complaint at 5.) He was shackled and speaking 12 calmly with Officer Zuniga when Officer Nielson came from behind and tackled 13 Plaintiff. (Id.) Nielson allegedly repeatedly slammed Plaintiff’s head into the 14 concrete while Officer John “K” Doe held Plaintiff’s legs. (Id.) Plaintiff then 15 returned to HDSP where he met with Nurse John Doe, who asked Plaintiff what 16 had happened. (Id. at 6.) Plaintiff told Nurse Doe about the incident, and Nurse 17 Doe asked whether he was attacked by an NDOC employee or a Clark County 18 Detention Center employee. (Id.) Plaintiff alleges that Nurse Doe failed to treat 19 Plaintiff’s ankles, which had cuts from his shackles, and did not treat Plaintiff for 20 a concussion. (Id.) 21 Plaintiff states that the next day, December 7, 2017, he was directed to 22 return to work despite his injuries and having submitted grievances regarding 23 Officer Nielson’s use of force, which allowed Officer Nielson to subject Plaintiff to 24 retaliation. (Id. at 7.) Officer Nielson attempted to place shackles on Plaintiff and 25 Plaintiff refused, asking “so you can slam my head into the concrete again?” (Id.) 26 While several other inmates were around, Officer Nielson yelled back, “like you 27 did that 86-year-old lady.” (Id.) Plaintiff alleges that his safety was put in jeopardy 28 because immediately another inmate assumed that Plaintiff was a protective 2 Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 3 of 10 1 custody inmate. (Id.) 2 II. MOTION FOR SUMMARY JUDGMENT 3 Defendant Officer Nielson brought a motion for summary judgment on 4 February 9, 2022. (ECF No. 75.) Regarding Plaintiff’s excessive force claim, Officer 5 Nielson argues that the force he applied was necessary and not excessive and 6 that he is entitled to qualified immunity. He states that on December 6, 2017, 7 after Plaintiff’s court hearing, Officer Nielson and his partner, Officer Christopher 8 Zuniga, went to retrieve Plaintiff. (Id. at 2.) Officers Nielson and Zuniga were 9 aware that as a result of his hearing, Plaintiff had not been remanded to the Clark 10 County Detention Center but rather would be returning to HDSP. (Id.) When 11 Officer Nielson went to the holding cell to retrieve Plaintiff, Plaintiff learned that 12 he was to return to HDSP and, according to Officer Nielson, “began screaming 13 while in the holding cell with several other NDOC inmates.” (Id. at 3; ECF No. 75- 14 2 at ¶ 3.) When Officer Nielson approached the holding cell, Plaintiff was 15 “standing in the middle of the cell yelling obscenities and making threats that he 16 would not leave[,]” including screaming “you are going to have to fucking drag me 17 out of here!” (ECF No. 75 at 3.) 18 Officer Nielson states that he then left to inform the court holding sergeant, 19 Sgt. Coleman, of the situation, and when he returned, Plaintiff “stood in the 20 middle of the doorway[,]” and was “verbally disruptive” when complying with 21 Officer Zuniga’s instruction to move to another holding cell. (Id.) Officer Zuniga 22 left to make a phone call to his and Officer Nielson’s supervisor, and meanwhile 23 Plaintiff’s cursing increased and became louder and Plaintiff “aggressively balled 24 his hands into fists.” (Id.) Officer Nielson instructed Plaintiff several times to get 25 on the ground, but Plaintiff allegedly refused to comply. (Id.) After Officer Nielson 26 “determined that minimal use of force was appropriate to ensure [Plaintiff] did 27 not harm Officer Nielson or others,” Officer Nielson “took hold of [Plaintiff’s] left 28 shoulder and left wrist and escorted him to the ground.” (Id.) 3 Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 4 of 10 1 Plaintiff was transported by another team by himself so that he would not 2 be able to disrupt other inmates and risk their safety. (Id. at 4.) Even though, 3 according to Officer Nielson, Plaintiff “had no visible signs of injury,” Plaintiff 4 reported to Officer Zuniga that he was injured as a result of the force applied by 5 Officer Nielson. (Id.) Officer Zuniga contacted medical and Plaintiff was examined 6 by Nurse Fana, who reported that Plaintiff had “no obvious signs of injury” and 7 stated, “no treatment needed at this time.” (Id.; ECF No. 77 at 4.) 8 Plaintiff responds first by explaining that he was not ordered back to HDSP 9 in the court proceeding, but rather was ordered into the custody of the Clark 10 County Sheriff. (ECF No. 93 at 1-2.) When Plaintiff informed Officer Nielson of 11 this fact, Officer Nielson allegedly responded, “I get paid to take you back to 12 prison.” (Id. at 2.) Plaintiff stated that he was “not going anywhere because I had 13 [sic] been remanded[,]” and Officer Nielson then responded by stating, “You are 14 giving me permission to put hands on you[.]” (Id.) Officer Zuniga ordered all the 15 inmates out of the holding cell and said that they were returning to the prison 16 when Plaintiff calmly explained to Officer Zuniga that he had been remanded to 17 Clark County Detention Center. At that time, “out of nowhere, C/O Nielson from 18 behind tackled me and drug me into holding cell #9, and repeatedly slammed my 19 head into the concrete, while C/O K held my legs.” (Id.) Plaintiff states that this 20 is supported by a declaration from inmate McMurry Session, who witnessed the 21 incident, but it does not appear that such a declaration was included with 22 Plaintiff’s response. 23 Plaintiff alleges that he had a headache and his ankles were bleeding when 24 he saw medical, and that “[a]pproximately 45 minutes after being examined by 25 the nurse [Plaintiff] became light-headed again and was nautious [sic], and began 26 dry heaving.” (Id. at 10.) Plaintiff also alleges that NDOC did not act in accordance 27 with A.R. 405.11(1), which requires photographing of all inmates who had forced 28 used upon them, regardless of injury. (Id.) 4 Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 5 of 10 1 Regarding Plaintiff’s First Amendment retaliation claim, Officer Nielson 2 argues that his response “like you did to that 84-year-old woman” constituted 3 mere harsh words which are not sufficient to state a claim for retaliation and that 4 Plaintiff has not provided any evidence to support the contention that his safety 5 was jeopardized when other inmates overheard the comment. (ECF No. 75 at 10.) 6 Officer Nielson also argues that he did not make the remark in retaliation for 7 Plaintiff’s grievance because Plaintiff did not file a grievance until December 13, 8 2017, six days after this remark was made. (Id. at 10-11.) Officer Nielson also 9 argues that he is entitled to qualified immunity and that Plaintiff failed to exhaust 10 his administrative remedies regarding his retaliation claim since Plaintiff did not 11 file any grievances regarding that claim, and Officer Nielson proffers Plaintiff’s 12 NDOC Inmate Grievance Report as evidence. (Id. at 12-13; ECF No. 75-4.) Plaintiff 13 does not address the arguments regarding his retaliation claim in his response. 14 III. LEGAL STANDARD 15 “The purpose of summary judgment is to avoid unnecessary trials when 16 there is no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. 17 Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is 18 appropriate when the pleadings, the discovery and disclosure materials on file, 19 and any affidavits “show there is no genuine issue as to any material fact and 20 that the movant is entitled to judgment as a matter of law.” Celotex Corp. v. 21 Catrett, 477 U.S. 317, 322 (1986). An issue is “genuine” if there is a sufficient 22 evidentiary basis on which a reasonable fact-finder could find for the nonmoving 23 party and a dispute is “material” if it could affect the outcome of the suit under 24 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). 25 The court must view the facts in the light most favorable to the non-moving party 26 and give it the benefit of all reasonable inferences to be drawn from those facts. 27 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 28 The party seeking summary judgment bears the initial burden of informing 5 Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 6 of 10 1 the court of the basis for its motion and identifying those portions of the record 2 that demonstrate the absence of a genuine issue of material fact. Celotex, 477 3 U.S. at 323. Once the moving party satisfies Rule 56’s requirements, the burden 4 shifts to the non-moving party to “set forth specific facts showing that there is a 5 genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may 6 not rely on denials in the pleadings but must produce specific evidence, through 7 affidavits or admissible discovery material, to show that the dispute exists,” Bhan 8 v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more 9 than simply show that there is some metaphysical doubt as to the material facts.” 10 Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec. 11 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). 12 IV. DISCUSSION 13 Defendant Officer Nielson argues that summary judgment on Plaintiff’s 14 excessive force claim is warranted because Plaintiff has not established a genuine 15 issue of material fact as to whether Officer Nielson’s use of force was excessive 16 and because the potential violation of Plaintiff’s rights by Officer Nielson was not 17 clearly established, thus entitling Officer Nielson to qualified immunity. Officer 18 Nielson argues that summary judgment on Plaintiff’s First Amendment retaliation 19 claim is warranted because Plaintiff has not established a genuine issue of 20 material fact as to whether Officer Nielson retaliated against Plaintiff, because 21 Officer Nielson is entitled to qualified immunity, and because Plaintiff failed to 22 exhaust his administrative remedies. 23 A. EXCESSIVE FORCE 24 Plaintiff’s excessive force claim is brought under the Eighth Amendment 25 since the alleged incidents occurred in the prison context. Hughes v. Rodriguez, 26 31 F.4th 1211, 1220 (9th Cir. 2022). In excessive force cases brought under the 27 Eighth Amendment, the relevant inquiry is “whether force was applied in a good- 28 faith effort to maintain or restore discipline, or maliciously and sadistically to 6 Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 7 of 10 1 cause harm.” Id. at 1221. The Ninth Circuit applies a five-factor test to determine 2 whether the use of force was malicious and sadistic: (1) the extent of injury 3 suffered by an inmate; (2) the need for application of force; (3) the relationship 4 between that need and the amount of force used; (4) the threat reasonably 5 perceived by the responsible officials; and (5) any efforts made to temper the 6 severity of the forceful response. Id. Although the extent of any injuries suffered 7 is relevant, a showing of a significant injury is not required for an excessive force 8 claim under the Eighth Amendment. Wilkins v. Gaddy, 559 U.S. 34, 38 (2010). 9 Plaintiff and Defendant Nielson offer competing stories each supported by 10 declarations. On the first factor, the extent of injury suffered, both Plaintiff and 11 Defendant Nielson proffer the medical incident report created on December 6, 12 2017, which states “No obvious signs of injury” and “No treatment needed at this 13 time.” However, Plaintiff states that his ankles were bleeding, that he had a 14 headache, and that he later became light-headed and nauseous and experienced 15 dry heaving. (ECF No. 93 at 10; see Amended Complaint at 6 (stating that medical 16 staff failed to treat Plaintiff for a concussion).) Plaintiff also points out that 17 Defendants were required to photograph Plaintiff after the incident involving the 18 use of force pursuant to A.R. 405.11(1), which he provides, and Defendant 19 Nielson does not contest this point. The medical incident report is evidence, but 20 it is contested with proposed testimony, including testimony about the lack of 21 additional medical evidence. There is a genuine issue of material fact as to the 22 extent of Plaintiff’s injuries. 23 The stories set forth by Plaintiff and Defendant Nielson also materially 24 diverge regarding the remaining factors, which relate to the need for the force in 25 light of the circumstances. First, Plaintiff and Defendant Nielson dispute whether 26 Plaintiff was ordered back to HDSP or was remanded into the custody of the Clark 27 County Sheriff. (ECF No. 75 at 2-3; ECF No. 93 at 8-9.) This is relevant to whether 28 Plaintiff was in fact disobeying the orders of Officer Nielson, as Officer Nielson 7 Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 8 of 10 1 argues, or whether Plaintiff was being subjected to competing and conflicting 2 directions that he was trying to explain. Defendant Nielson states that Plaintiff 3 was screaming obscenities and had “aggressively balled his hands into fists[,]” 4 while Plaintiff states that he was “calmly explain[ing]” the situation to Officer 5 Zuniga when Officer Nielson “out of nowhere … from behind tackled me[.]” (ECF 6 No. 75 at 3; ECF No. 93 at 9.) These competing facts are relevant to whether there 7 was any need for the force and whether the officers reasonably perceived any 8 threat from Plaintiff. In sum, there are genuine issues of material fact as to 9 Plaintiff’s excessive force claim. 10 Defendant Nielson argues that he is entitled to qualified immunity because 11 any putative violation was not “clearly established.” (ECF No. 75 at 12 (citing 12 Wilkins v. Gaddy, 559 U.S. at 37–38).) Defendant Nielsen’s reliance on Wilkins is 13 unavailing because it merely confirms that significant injury is not required for 14 an excessive force claim, and there is clear precedent holding that the unjustified 15 use of force is excessive. Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir. 16 2003) (“The Court's settled rule is that the unnecessary and wanton infliction of 17 pain constitutes cruel and unusual punishment forbidden by the Eighth 18 Amendment.”) (citing Hudson v. McMillian, 503 U.S. 1, 5 (1992)). If Plaintiff’s 19 version of the events is believed, there was no need for force to be applied against 20 Plaintiff. Defendant Nielson’s motion for summary judgment on Plaintiff’s 21 excessive force claim is denied. 22 B. RETALIATION 23 Within the prison context, a claim of First Amendment retaliation has five 24 basic elements: (1) an assertion that a state actor took some adverse action 25 against an inmate (2) because of (3) that prisoner's protected conduct, and that 26 such action (4) chilled the inmate's exercise of his First Amendment rights, and 27 (5) the action did not reasonably advance a legitimate correctional goal. Rhodes 28 v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005). Defendant Officer Nielson 8 Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 9 of 10 1 argues that he could not have made the allegedly retaliatory remark regarding 2 Plaintiff because of Plaintiff’s protected conduct of filing grievances because 3 Plaintiff did not file any grievance relating to the use of force on December 6, 4 2017, until December 13, 2017. Officer Nielson cites the exhibit filed by Plaintiff 5 on January 6, 2020 (ECF No. 15), and provides Plaintiff’s Inmate Grievance 6 Report (ECF No. 75-4), which affirm that no grievance was submitted by Plaintiff 7 before the remarks were made on December 7, 2017. Plaintiff does not provide 8 any argument or evidence to counter this assertion. There is no genuine issue of 9 material fact as to whether Officer Nielson made the remarks because of Plaintiff’s 10 protected conduct. Defendant Nielson’s motion for summary judgment on 11 Plaintiff’s First Amendment retaliation claim is granted. 1 12 V. MOTIONS IN LIMINE AND MOTION TO FILE UNDER SEAL 13 On February 3, 2022, Plaintiff filed two motions in limine: a motion in 14 limine to exclude evidence regarding disciplinary history (ECF No. 69); and (2) a 15 motion in limine to exclude evidence regarding convictions (ECF No. 70). 16 Defendant Officer Nielson does not oppose these motions in limine on the merits 17 but rather argues that they are premature since, at that time, the motion for 18 summary judgment had not been decided and the litigation was relatively far 19 from the trial preparation stage. (ECF Nos. 81, 82.) The Court agrees with Officer 20 Nielson. The parties are directed to meet and confer on the issues raised in the 21 motions in limine when the parties confer regarding the joint pretrial order 22 When Defendant Officer Nielson moved for summary judgment on February 23 9, 2022, Officer Nielson also moved to file under seal Plaintiff’s medical incident 24 report along with a declaration from Jaymie Cabrera, R.N., authenticating the 25 medical incident report. (ECF No. 76.) On October 28, 2022, Plaintiff filed a non- 26 27 28 Defendant Nielson also argues that summary judgment on this claim is warranted because Plaintiff did not exhaust his administrative remedies since Plaintiff did not file any grievances regarding this claim. Although the Court need not reach the issue of exhaustion, it appears that Plaintiff did file grievances relating to this claim. (ECF No. 75-4 at 19.) 1 9 Case 2:19-cv-00172-ART-NJK Document 95 Filed 12/22/22 Page 10 of 10 1 opposition to Officer Nielson’s motion to file under seal. (ECF No. 91.) Officer 2 Nielson’s motion to file under seal is therefore granted as unopposed. 3 VI. CONCLUSION 4 Based on the foregoing and in consideration of the record as a whole, the 5 Court denies Defendant Officer Nielson’s motion for summary judgment (ECF No. 6 75) on Plaintiff’s excessive force claim and grants Officer Nielson’s motion for 7 summary judgment on Plaintiff’s First Amendment retaliation claim. 8 The Court further denies Plaintiff’s motions in limine (ECF Nos. 70, 71) 9 without prejudice as premature. The Court directs the parties to meet and confer 10 regarding the issues raised in the motions in limine prior to the filing of a joint 11 pretrial order. 12 13 14 The Court further grants Officer Nielson’s motion for leave to file declaration in camera and under seal as unopposed. (ECF No. 76.) It is so ordered. 15 16 DATED THIS 22nd day of December 2022. 17 18 19 20 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 10
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