Smith v. Baca ( 2019 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 TANIKO SMITH, et al., Case No. 3:16-cv-00456-MMD-WGC 7 Plaintiffs, ORDER v. 8 ISIDRO BACA, et al., 9 Defendants. 10 11 I. SUMMARY 12 This is a civil rights case brought by Elsie Spell, a former employee of the Nevada 13 Department of Corrections (“NDOC”), and her husband Taniko Smith, an individual in 14 NDOC's custody. Plaintiffs sued Defendants Isidro Baca and James Dzurenda for 15 allegedly denying Spell’s visitation application, violating the Equal Protection Clause under 16 the Fourteenth Amendment.1 17 Before the Court is a Report and Recommendation of United States Magistrate 18 Judge William G. Cobb (“R&R”) (ECF No. 53) regarding Defendants’ Motion for Summary 19 Judgment (“Defendants’ Motion”) (ECF No. 40) and Plaintiffs’ Cross-Motion for Summary 20 Judgment (“Plaintiffs’ Cross-Motion”) (ECF No. 44). Judge Cobb recommends that the 21 Court deny Plaintiffs’ Cross-Motion and grant in part, and deny in part, Defendants’ Motion. 22 (ECF No. 53 at 17.) The parties filed objections to the R&R.2 (ECF Nos. 54, 56.) For the 23 24 1While Plaintiffs initially sued Defendants Brian Ward and Eldon K. McDaniel as 25 well, the Court dismissed those Defendants with prejudice. (ECF No. 27 at 7.) Only Defendants Isidro Baca and James Dzurenda remain in this action. 26 2The Court strikes the parties’ replies in support of their Objections (ECF Nos. 57, 27 58) because neither party sought leave of Court to file their reply and because the issues were thoroughly briefed. See LR IB 3-2(a) (“Replies will be allowed only with leave of 28 court.”). 2 in full. 3 II. BACKGROUND 4 The Court adopts the facts in the R&R (ECF No. 53 at 1-2, 5-9) and does not recite 5 them here. 6 III. LEGAL STANDARDS 7 A. Review of the Magistrate Judge’s Recommendations 8 This Court “may accept, reject, or modify, in whole or in part, the findings or 9 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 10 timely objects to a magistrate judge’s report and recommendation, then the court is 11 required to “make a de novo determination of those portions of the [report and 12 recommendation] to which objection is made.” Id. Where a party fails to object, however, 13 the court is not required to conduct “any review at all . . . of any issue that is not the subject 14 of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has 15 recognized that a district court is not required to review a magistrate judge’s report and 16 recommendation where no objections have been filed. See United States v. Reyna-Tapia, 17 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district 18 court when reviewing a report and recommendation to which no objections were made); 19 see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the 20 Ninth Circuit’s decision in Reyna-Tapia as adopting the view that district courts are not 21 required to review “any issue that is not the subject of an objection.”). Thus, if there is no 22 objection to a magistrate judge’s recommendation, then the court may accept the 23 recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 24 (accepting, without review, a magistrate judge’s recommendation to which no objection 25 was filed). 26 B. Summary Judgment Standard 27 “The purpose of summary judgment is to avoid unnecessary trials when there is no 28 dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 2 the discovery and disclosure materials on file, and any affidavits “show there is no genuine 3 issue as to any material fact and that the movant is entitled to judgment as a matter of 4 law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is 5 a sufficient evidentiary basis on which a reasonable fact-finder could find for the 6 nonmoving party and a dispute is “material” if it could affect the outcome of the suit under 7 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). Where 8 reasonable minds could differ on the material facts at issue, however, summary judgment 9 is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a 10 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' 11 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th 12 Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288–89 (1968)). 13 In evaluating a summary judgment motion, a court views all facts and draws all inferences 14 in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & 15 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 16 The moving party bears the burden of showing that there are no genuine issues of 17 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the 18 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the 19 motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 20 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must 21 produce specific evidence, through affidavits or admissible discovery material, to show 22 that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), 23 and “must do more than simply show that there is some metaphysical doubt as to the 24 material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita 25 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence of 26 a scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson, 27 477 U.S. at 252. 28 /// 2 must be considered on its own merits.’” Fair Hous. Council of Riverside Cty., Inc. v. 3 Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (citations omitted) (quoting William 4 W. Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions, 139 5 F.R.D. 441, 499 (Feb. 1992)). “In fulfilling its duty to review each cross-motion separately, 6 the court must review the evidence submitted in support of each cross-motion.” Id. 7 IV. DISCUSSION 8 The Court adopts the recommendations for which the parties did not object and will 9 review de novo the recommendations for which the parties objected. Specifically, the 10 parties did not object to Judge Cobb’s recommendation to Defendants’ Motion on the 11 merits of Plaintiffs’ Equal Protection claim, finding material issues of fact exist to preclude 12 summary judgment, and to deny Plaintiffs’ Cross-Motion on the same ground. (EF No. 53 13 at 10-15.) The Court adopts these recommendations. Plaintiffs object to the 14 recommendation to dismiss Defendant John Doe and to grant Defendants’ Motion as to 15 preclude damages based on Defendants’ official capacities (id. at 2 n. 2, 16.) Defendants 16 object to denial of summary judgment based on qualified immunity. (ECF No. 56 at 10.) 17 The Court will overrule the parties’ objections and will address them in turn below. 18 a. Plaintiff’s Objection 19 The R&R recommends dismissal under both Rule 4(m) and for failure to substitute 20 Defendant Doe’s true identity. (ECF No. 53 at 2 n. 2, 17.) Plaintiffs ask the Court to refer 21 to their opposition to Defendant’s Motion (ECF No. 43), contending that they believe John 22 Doe is Burger. (ECF No. 54 at 2.) They also insist Defendants have failed to provide 23 requested information. The Court agrees with Judge Cobb that Plaintiffs have failed to add 24 Defendant Doe by the scheduling order deadline. (ECF No. 27 at 6 n.3 (permitting Plaintiff 25 to proceed against Defendant Doe to discover the true identity of said Defendant); ECF 26 No. 31 at 1 (giving Plaintiffs until January 2019 to amend their pleadings or add parties).) 27 Accordingly, Defendant Doe is dismissed without prejudice. 28 /// 2 purpose of dismissing Plaintiffs’ claims for monetary damages against Defendants in their 3 official capacities. (ECF No. 53 at 16 (citing to Bank of Lake Tahoe v. Bank of Am., 318 4 F.3d 914, 918 (9th Cir. 2003)). Plaintiffs do not object but instead insists that Defendants 5 should remain in this case in their official capacity to ensure that injunctive relief is carried 6 out. (ECF No. 54 at 2.) Plaintiffs have clearly misread the R&R on this claim—which would 7 proceed under the R&R—therefore the Court will adopt Judge Cobb’s recommendation. 8 b. Defendants’ Objection 9 Judge Cobb found that Plaintiffs demonstrated a genuine dispute of material fact 10 as to whether the denial of visitation was arbitrary under the Equal Protection Clause. 11 (ECF No. 53 at 14.) Defendants assert that Spell was denied visitation because she was 12 a former employee of NDOC and was under investigation for being in an improper 13 relationship with Smith. (ECF No. 40 at 5-6.) But Judge Cobb found that Plaintiffs 14 presented evidence that other inmates were granted visitation with former employees— 15 one inmate was written up for “compromising [an] ex-employee” while another ex- 16 employee was under investigation for allegedly being in a relationship with an inmate. 17 (ECF No. 53 at 10.) Accordingly, a trier of fact could reasonably find that Defendants 18 arbitrarily denied Spell’s visitation and therefore violated Plaintiffs’ equal protection rights. 19 (Id. at 10-12.) 20 Defendants essentially raise two objections to the R&R that turn on the issue of 21 qualified immunity. (ECF No. 56 at 5-10.) First, Defendants object that prison visitation is 22 not a clearly established right. (Id. at 5, 9.) Second, Defendants object that Judge Cobb 23 erred in misconstruing the standard for qualified immunity, which Plaintiffs have not 24 satisfied. (Id. at 6-9.) The Court disagrees. 25 The Equal Protection Clause of the Fourteenth Amendment is essentially a 26 direction that all similarly situated persons be treated equally under the law. City of 27 Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In order to claim a 28 violation of equal protection in a “class-of-one” case where a plaintiff does not belong to a 2 [the plaintiff] differently than other[s] similarly situated, (3) without a rational basis.” Gerhart 3 v. Lake Cty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011) (citation omitted). The class-of- 4 one doctrine does not apply to forms of state action that “by their nature involve 5 discretionary decisionmaking based on a vast array of subjective, individualized 6 assessments.” Towery v. Brewer, 672 F.3d 650, 660 (9th Cir. 2012) (citing Engquist v. 7 Oregon Dep't of Agric., 553 U.S. 591, 603 (2008)). However, where there is a pattern of 8 generally exercising the discretion in a manner that treats the complaining individual less 9 favorably than others, the class-of-one doctrine applies. Id. 660-61. Nevertheless, a 10 defendant can assert a defense of qualified immunity depending on (1) whether there is a 11 constitutional violation, which is a question of fact, and (2) whether that right was clearly 12 established at the time of the challenged conduct, which is a question of law. See Tortu v. 13 Las Vegas Metro. Police Dep't, 556 F.3d 1075, 1085 (9th Cir. 2009) (citing to Saucier v. 14 Katz, 533 U.S. 194, 201 (2001)). 15 Defendants argue that prison visitation is not a clearly established right (ECF No. 16 56 at 5, 9), but that oversimplifies the issue. See Deorle v. Rutherford, 272 F.3d 1272, 17 1285-86 (9th Cir. 2001) (clarifying that qualified immunity does not require that a prior case 18 prohibit the exact misconduct at issue in the case); Hope v. Pelzer, 536 U.S. 730, 741 19 (2002) (“[O]fficials can be on notice that their conduct violates established law even in 20 novel factual circumstances.”). Defendants denied Plaintiffs visitation while granting other 21 former employees’ visitation—including one who was under investigation for allegedly 22 being in a relationship with the inmate. (ECF No. 53 at 10.) At that time, it was clearly 23 established law that individuals have a right to not be intentionally and arbitrarily treated 24 differently from other similarly situated persons. (See id. at 9.) See Gerhart v. Lake Cty., 25 Mont., 637 F.3d 1013, 1025 (9th Cir. 2011); Neff v. McDaniel, No. 3-09-cv-271-HDM-VPC, 26 2010 WL 1930155, at *2 (D. Nev. Feb. 22, 2010) (holding that inmate stated an equal 27 protection claim where he alleged “he was treated differently from similar situated inmates 28 /// 2 period of time than they were”). 3 Defendants’ remaining objections can be summed up as Judge Cobb erred in 4 relieving Plaintiffs of their burden to prove that denying visitation is a violation of clearly 5 established law,3 a burden that Plaintiffs have not met. (ECF No. 56 at 6-9.) To the 6 contrary, Judge Cobb found that Plaintiffs’ evidence in fact satisfied their burden and that 7 a trier of fact could reasonably find that Defendants intentionally and arbitrarily treated 8 Plaintiffs differently from other similarly situated persons, therefore violating clearly 9 established law. (ECF No. 53 at 10-12, 15-16; see also ECF No. 43 at 18 (arguing that 10 denial of Plaintiffs’ visitation was arbitrary).) Indeed, Plaintiffs presented evidence that, 11 inter alia, other former employees—including those who had or was investigated for 12 allegedly having a relationship with an inmate—were granted visitation rights. (ECF No. 13 53 at 10-11.) See Neff, 2010 WL 1930155, at *2. In arguing that Plaintiffs have not met 14 their burden of proof, Defendants raise several objections that essentially question the 15 weight and credibility of Plaintiffs’ affidavits. (ECF No. 56 at 4, 7-9.). But that is not an 16 appropriate consideration at the summary judgment stage. See Hanson v. Pauli, No. 3:13- 17 cv-397-MMD, 2015 WL 3649063, at *4 (D. Nev. June 11, 2015) (“At summary judgment, 18 the court's function is not to weigh the evidence and determine the truth.”) (citing to 19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 20 21 3Defendants insist that their asserted rational basis for denying Spell’s visitation is entitled to deference (ECF No. 56 at 7-8), but Defendants either misstate the law or proffer 22 an incomplete legal standard. Prison authorities cannot rely on general or conclusory assertions to support their policies. Walker, 917 F.2d at 386. “Rather, they must [1] first 23 identify the specific penological interests involved and then [2] demonstrate both that those 24 specific interests are the actual bases for their policies and that [3] the policies are reasonably related to the furtherance of the identified interests. An evidentiary showing is 25 required as to each point.” Id. (emphasis added). Contrary to Defendants’ assertions (ECF No. 6-8), it is only after they have met their evidentiary showing—which they have not 26 made—that the Court will then defer to the judgment of prison officials. Id. at 386. Evidence showing that Defendants treated Plaintiffs differently from other ex-employees suggests 27 that Defendants’ reason for denying Spell’s visitation (namely that she is an ex-employee) 28 is not an actual basis for Defendants’ policy decision. (See ECF No. 53 at 11-12.) 1 Accordingly, the Court overrules Defendants’ objections and adopts the R&R in full 2 || as to Defendants’ Motion. 3 || V. CONCLUSION 4 The Court notes that the parties made several arguments and cited to several cases 5 || not discussed above. The Court has reviewed these arguments and cases and determines 6 || that they do not warrant discussion as they do not affect the outcome of the motions before 7 || the Court. 8 It is therefore ordered, adjudged and decreed that the R&R of Judge Cobb (ECF 9 || No. 53) is adopted in full. 10 lt is further ordered that Plaintiffs’ cross-motion for summary judgment (ECF No. 11 || 44) is denied. 12 It is further ordered that Defendant Doe is dismissed without prejudice based on 13 || Plaintiff's failure to comply with the schedule order (ECF No. 31). 14 It is further ordered that Defendants’ motion for summary judgment (ECF No. 40) 15 || is granted for the limited purpose of dismissing Plaintiffs’ claims for monetary damages 16 || against Defendants in their official capacities. It is denied in all other respect. 17 18 DATED THIS 19" day of December 2019. 19 20 ALW_ IRANDA M. DU 21 CHIEF UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28