Brian Debarr v. Stephen Clark , 633 F. App'x 662 ( 2016 )

FILED
NOT FOR PUBLICATION
MAR 02 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN JOEL DEBARR, No. 14-15497
Plaintiff - Appellant, D.C. No. 3:12-cv-00039-LRH-
WGC
v.
STEPHEN CLARK; et al., MEMORANDUM*
Defendants - Appellees.
CHIOKE GADSDEN and NATHAN No. 14-16250
PETERSON,
D.C. No. 3:12-cv-00098-RCJ-VPC
Plaintiffs - Appellants,
v.
TARA CARPENTER; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted February 12, 2016
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
San Francisco, California
Before: SCHROEDER and NGUYEN, Circuit Judges and ADELMAN,** District
Judge.
Plaintiffs Brian DeBarr, Chioke Gadsden and Nathan Peterson, inmates at
Lovelock Correctional Center (“LCC”) in Nevada, appeal the district court’s grant
of summary judgment for Defendants, LCC administrators. We have jurisdiction
under 28 U.S.C. § 1291. We reverse and remand.
After construction at LLC destroyed an on-site pagan worship area, a group
of inmates including Plaintiffs filed multiple grievances pursuant to Nevada
Department of Corrections Administrative Regulation 740 (“AR 740”). Plaintiffs
were subsequently charged with abusing the prison grievance process and
sentenced to 15 days of disciplinary segregation. In addition, Plaintiff DeBarr was
transferred to High Desert State Prison (“HDSP”).
Plaintiffs claim that they were punished in retaliation for exercising their
First Amendment rights after they properly utilized AR 740 to express legitimate
concerns. See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). Defendants
counter that Plaintiffs’ First Amendment rights were not implicated because the
purpose of their filing grievances was simply to harass prison staff.
**
The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
Summary judgment is properly granted only when the evidence, viewed in
the light most favorable to the nonmoving party, presents no genuine issue of
material fact. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).
Here, the district court erred by concluding that the evidence presented no genuine
issue of material fact as to whether Plaintiffs abused the prison grievance process.
Defendants argue, for example, that the timing and duplicative nature of the
grievances, and Plaintiffs’ failure to engage in other informal ways to resolve their
concerns, show that the grievances were intended to harass rather than designed to
lead to any practical result. But the evidence, when viewed in the light most
favorable to Plaintiffs, shows that they had engaged in the prison’s informal
resolution procedure before filing their grievances, that their grievances were not
frivolous, vexatious or duplicative, and that Defendants failed to follow their own
mandated procedures in punishing Plaintiffs. Further, Defendants argue that AR
740 expressly forbids filing duplicative grievances, but AR 740 only limits the
number of “unfounded frivolous or vexatious grievances,” a disputed issue in this
case. Because we conclude that the district court erred in granting Defendants
summary judgment because genuine issues of material fact exist, we need not
address Plaintiffs’ remaining arguments relating to summary judgment.
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Plaintiffs also claim that the district court abused its discretion by denying
their request for a continuance of summary judgment pending further discovery.
Fed. R. Civ. P. 56(d). On remand, Plaintiffs should be allowed to pursue
discovery. At the time the district court denied the continuance request, Plaintiffs
had diligently pursued discovery of potentially favorable information, and
Defendants had not fulfilled their discovery obligations at the time summary
judgment was granted. Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d
1162, 1178 (9th Cir. 2006).
Finally, we conclude that the district court erred in dismissing certain
defendants from the Gadsden lawsuit. 28 U.S.C. § 1915A. The court provided no
reasoned basis for eliminating all but one defendant in the Gadsden action while
allowing the same claims to go forward against multiple defendants in the DeBarr
action.
We reverse and remand for proceedings consistent with this disposition.
REVERSED AND REMANDED.
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