Voss v. Baca

• Decision Date: 09 July 2015
• Docket Number: 3:14-cv-00066-RCJ-WGC
• Parties: STEVEN FLOYD VOSS, Plaintiff, v. ISIDRO BACA, et. al., Defendants.
• Court: U.S. District Court — District of Nevada

STEVEN FLOYD VOSS, Plaintiff, v. ISIDRO BACA, et. al., Defendants.

3:14-cv-00066-RCJ-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

July 9, 2015

REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

This Report and Recommendation is made to the Honorable Robert C. Jones, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the Local Rules of Practice, LR 1B 1-4. Before the court is Plaintiff's Motion for Partial Summary Judgment (Doc. # 39)¹, to which Defendants filed an Opposition (Doc. # 73) and Cross-Motion to Dismiss Plaintiff's ADA and RA Claims (Doc. # 74).² Plaintiff filed a reply in support of his motion (Doc. # 83) as well as a response to Defendants' cross-motion (Doc. # 85). Defendants filed a reply in support of their cross-motion. (Doc. # 89.)

Also before the court is Defendants' Motion for Summary Judgment as to Counts III and IV of Plaintiff's Complaint. (Doc. # 117.) Plaintiff filed a response to this motion (Doc. # 126) and Defendants filed a reply (Doc. # 127)

After a thorough review, the court recommends that: (1) Plaintiff's Motion for Partial Summary Judgment (Doc. # 39) be denied; (2) Defendants' Cross-Motion to Dismiss Plaintiff'sADA and RA Claims (Doc. # 74) be denied; and (3) Defendants' Motion for Summary Judgment as to Counts III and IV (Doc. # 117) be granted.

I. BACKGROUND

A. Parties and Claims

Plaintiff, a pro se litigant, is a prisoner in the custody of the Nevada Department of Corrections (NDOC), and brings this action pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131, et. seq., and the Rehabilitation Act (RA), 29 U.S.C. § 794. (Pl.'s Compl., Doc. # 20.) The events giving rise to this action took place while Plaintiff was housed at the Northern Nevada Correctional Center (NNCC). (Id.) Defendants are NDOC Director Greg Cox, NDOC Deputy Director E.K. McDaniel, NNCC Warden Isidro Baca, NNCC Associate Warden Ron Schreckengost, NNCC Associate Warden Lisa Walsh, NNCC Correctional Case Specialist II William Humphrey, NNCC Correctional Case Specialist II Shannon Moyle, and Monica Navarro. (Doc. # 20 at 2-3; Screening Order, Doc. # 19.)

On screening, Plaintiff was allowed to proceed with the following claims: (1) claims for violation of the ADA and RA in Count I against Cox, McDaniel, Baca, Shreckengost, Walsh and Moyle; (2) a retaliation claim in Count II against defendants Humphrey, Walsh, Navarro, and Moyle; (3) a claim for denial of access to the courts in Count III against defendants Walsh, Navarro, Baca and McDaniel; and (4) an access to courts claim against defendant Humphrey in Count IV. (Doc. # 19 at 3-7.)

The court dismissed with prejudice Plaintiff's Fourteenth Amendment due process claim in Count I, and Count V was dismissed as duplicative of Counts III and IV. (Doc. # 19 at 4-5, 7-8.)

In Count I, Plaintiff alleges that on March 4, 2013, NNCC initiated the institutional level system (governed by Operational Procedure (OP) 516), consisting of three levels. (Doc. # 20 at 5-6.) Plaintiff claims he has a qualified disability within the meaning of the ADA, and that his medical records demonstrate that he is regarded as having such disability. (Id. at 6.) He alleges that his medical classification and medical restrictions render him ineligible for any prison work assignment within NDOC, which systematically precludes him from advancing within theinstitutional levels. (Id. at 6) He avers that he can never advance to level one status and benefit from the programs, activities, benefits and privileges enjoyed by level one's inmates because a prerequisite to level one status is the ability to hold a work assignment. (Id. at 6-7.) He avers that these benefits and privileges include exercise facilities, hobby craft, a music program, and the inmate coffee shop. (Id. at 8.) He also mentions that his conviction which resulted in his confinement within NDOC does not impose any work requirement; therefore, NDOC may not impose such a requirement upon him. (Id. at 9.)

In Count II, Plaintiff alleges that prison officials changed his housing assignment from Unit 10-B to Unit 2-C in anticipation of the implementation of the institutional level system. (Id. at 10.) On March 4, 2013, when NNCC implemented the system, Unit 10 was converted into a level one housing unit, and Unit 2 was converted to a level three housing unit. (Id.) Plaintiff was assigned to level three; then, on July 25, 2013, Unit 2 was upgraded to level two status along with Plaintiff. (Id.) Plaintiff was then assigned to level three again on September 10, 2013. (Id. at 11.) He asserts that this occurred after he had a meeting with Walsh and Navarro, who had assured him that he would not receive a level reduction absent a write-up. (Id.) Plaintiff did not receive a write-up but nevertheless had his level reduced. Plaintiff alleges the level reduction was retaliatory because he had filed grievances (2006-29-58159 and 2006-29-670049) challenging the institutional level system, and alleging that Humphrey had inappropriately approached him about a grievance alleging misconduct against Humphrey. (Id. at 11-12.) Plaintiff had reported this incident to Walsh, who assured Plaintiff there would be no retaliation. (Id. at 12.) Nonetheless, the incident was brought to the attention of Humphrey's supervisor, Moyle, who had admonished Plaintiff regarding his comments. (Id. at 12.13.) As indicated above, the court construed this as stating a retaliation claim against Walsh, Navarro and Moyle.

In Count III, Plaintiff alleges that he submitted a grievance on March 5, 2013, and on March 27, 2013, Walsh returned the grievance to Plaintiff as improper because Plaintiff did not attach proof of his attempts to informally resolve his grievance claims with his caseworker. (Id. at 17.) He resubmitted the grievance with proof of his efforts to informally resolve the issue, and a response should have been forthcoming by May 10, 2013. (Id.) He did not receive a responseby May 10, 2013, and so he submitted his first level grievance on that date, with a response due by June 24, 2013. (Id. at 17-18) On May 21, 2013, Plaintiff received a response to the resubmitted informal level grievance. (Id. at 18.) Plaintiff informed the responder that because the response was overdue, he had already sent in his first level grievance, and the caseworker instructed Plaintiff to resubmit the first level grievance, which he did. (Id.) Plaintiff claims that this did not extend the time for them to respond to the initially-submitted first level grievance, but he nevertheless waited until July 10, 2013 to submit his second and final level grievance. (Id. at 19.) On August 19, 2013, his first level grievance was returned as improper, asserting that Plaintiff failed to attach his informal level grievance response. (Id.) The second level grievance was also returned as improper on the basis that the first level grievance has been returned as improper. (Id. at 19-20.) On August 22, 2013, Plaintiff re-submitted the first level grievance to Walsh during a conference with her and Monica Navarro. (Id. at 20.)

Plaintiff avers that Walsh and Navarro told him that they were intentionally delaying the grievance process for claims involving the institutional level system because they were trying to "iron-out wrinkles in the level system." (Id.) Plaintiff alleges that this delay impeded his ability to exhaust his administrative remedies and file a claim. (Id.)

In Count IV, Plaintiff alleges that on August 20, 2013, prior to submitting his informal level grievance (number 2006-29-67049), he attempted to informally resolve his claims with his caseworker, defendant Humphrey, to attach to his informal level grievance. (Id. at 24.) He claims that he gave Humphrey an inmate request form where he asked Humphrey to acknowledge his attempts to informally resolve his claims, but Humphrey refused to provide this acknowledgement. (Id. at 24-25.) Humphrey admitted Plaintiff could not have his grievance accepted without proof of trying to informally resolve the issues, and that Plaintiff had to exhaust his administrative remedies prior to filing suit. (Id. at 25.)

B. Plaintiff's Motion for Partial Summary Judgment Re: Claims I and III (Doc. # 39)

Plaintiff moves for partial summary judgment as to his claims in Counts I and III. (Doc. # 39.) First, Plaintiff asserts that his medical records demonstrate that he is a person with a qualified disability or is regarded as having a qualified disability by NDOC insofar as his claimsunder the ADA and RA are concerned. (Doc. # 39 at 20-21, 38.) He contends that due to his medical classification, he is ineligible for any work assignment within NDOC which precludes him from advancing to level one status and enjoying the benefits afforded to level one inmates. (Id. at 21, 39.) Second, with respect to Count III, he argues that he has sufficiently exhausted his administrative remedies and is entitled to summary judgment on this issue. (Id. at 28-36, 41-57.)

C. Defendants' Response and Cross-Motion to Dismiss Plaintiff's ADA & RA Claims (Docs. # 73/74)

Defendants oppose Plaintiff's partial motion for summary judgment, and move to dismiss Plaintiff's ADA and RA claims. (Docs. # 73/74.) In response to Plaintiff's motion, Defendants dispute that Plaintiff cannot work due to his medical classification. With respect to Count III, Defendants acknowledge that Plaintiff exhausted his administrative remedies as to his ADA and RA claims, but argue that at a minimum, a genuine dispute of material fact exists as to whether Plaintiff suffered actual injury because he was able to file this lawsuit within the statute of limitations. Finally, they argue that Walsh did not abuse the grievance process.

In their cross-motion to dismiss Plaintiff's ADA and RA claims, Defendants argue that Plaintiff lacks standing to bring these claims because Plaintiff does not have a qualified...