Opinion
No. 75340-COA
10-16-2019
GARY E. MCKINLEY, Appellant, v. MEGAN MCCLELLAN; ROBERT LEGRAND, WARDEN; S.L. FOSTER; STARLIN GENTRY; J. HILDERBRAND; QUENTIN BYRNE; AND S. BAROS, Respondents.
ORDER AFFIRMING IN PART, REVERSING IN PART AND REMANDING
Gary E. McKinley appeals from a district court order granting summary judgment in a civil rights action. Eleventh Judicial District Court, Pershing County; Jim C. Shirley, Judge.
Because defendants Richard Main and Leanne Rutherford were not served and did not make appearances in the district court, they did not become parties to the case, and thus they are not proper parties to this appeal. See Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 448, 874 P.2d 729, 735 (1994) (explaining that a person who is not served with process and does not make an appearance in the district court is not a party to that action). Additionally, neither Catherine Cortez Masto nor Benjamin Johnson were named in the complaint and therefore they likewise are not proper parties to this appeal. We therefore direct the clerk of the court to amend the caption of this case to conform to the caption on this order.
McKinley, an inmate, filed a civil rights complaint against respondents Megan McClellan, Robert Legrand, Sheryl Foster, Starlin Gentry, Jeffory Hilderbrand, Quentin Byrne, and Susan Baros, who are employees of the Nevada Department of Corrections. His complaint alleged violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution relating to allegations that his privileged mail was improperly opened, allegations he was retaliated against for grieving the allegedly improper opening of his mail, an allegedly retaliatory disciplinary hearing, and the refusal to allow him to watch dvds of his criminal proceedings. He also asserted claims for negligent infliction of emotional distress (NIED) and intentional infliction of emotional distress (IIED). With respect to the dvd issue, the complaint was also jointly filed with another inmate, who later voluntarily dismissed his claim, and was purportedly filed as a class action on behalf of other prisoners. McKinley filed motions for appointment of counsel and to certify the case as a class action, which were ultimately denied. Respondents then filed a motion to dismiss or for summary judgment, which McKinley opposed. He also filed a countermotion for summary judgment, requested that the motion be continued in order to conduct discovery, and moved to strike some of the evidence attached to respondents' motion. After a hearing on the matter, the district court granted respondents' motion for summary judgment. This appeal followed.
Class certification and appointment of counsel
As an initial matter, we conclude the district court did not abuse its discretion in denying class certification as the record indicates McKinley failed to meet his burden of proving that the case was appropriate for class certification. See NRCP 23; Cummings v. Charter Hosp. of Las Vegas, Inc., 111 Nev. 639, 643-44 896 P.2d 1137, 1139-40 (1995). Moreover, because McKinley is not an attorney and is proceeding pro se, he could not represent other purported class members. See Guerin v. Guerin, 116 Nev. 210, 214, 993 P.2d 1256, 1258 (2000) (stating that while an individual can represent himself or herself in court, no rule or statute permits a non-attorney to represent any other person in court). And to the extent McKinley argues that the district court should have appointed counsel, we discern no impropriety in the denial of his request to appoint counsel. See Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 804, 102 P.3d 41, 45 (2004) (recognizing that the Sixth Amendment right to counsel applies only in criminal prosecutions). As a result, we affirm the orders denying class certification and denying appointment of counsel.
The Nevada Rules of Civil Procedure were amended effective March 1, 2019. See In re Creating a Comm. to Update & Revise the Nev. Rules of Civil Procedure, ADKT 0522 (Order Amending the Rules of Civil Procedure, the Rules of Appellate Procedure, and the Nevada Electronic Filing and Conversion Rules, December 31, 2018). But those amendments do not affect the disposition of this appeal, as they became effective after the district court entered the orders at issue in this appeal. Accordingly, we cite the previous versions of the applicable rules herein.
Summary judgment on McKinley's claims
Turning to the district court's order granting summary judgment, such a decision is subject to de novo review by this court on appeal. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id. When deciding a summary judgment motion, all evidence must be viewed in a light most favorable to the nonmoving party. Id. General allegations and conclusory statements do not create genuine issues of fact. Id. at 731, 121 P.3d at 1030-31.
Claims related to the viewing of dvds
On this point, McKinley argues that the evidence before the district court did not establish that his claims pertaining to the dvds of his criminal proceedings were barred by res judicata. We agree. As a threshold matter, while respondents argued that res judicata applied to bar the dvd claims based upon McKinley's previously obtained writ of mandamus, based upon the record before us, it does not appear that the writ was ever presented to the district court and therefore, it is not clear how the district court could have reached its conclusion that this decision barred McKinley's claims in the instant matter if the order granting the writ was not presented to the district court. As a result, we necessarily reverse and remand that portion of the district court's order that found res judicata applied to bar these claims.
We note that the Nevada Supreme Court has abandoned the catchall "res judicata" terminology in favor of the terms claim preclusion and issue preclusion and has articulated separate rules for applying each of these separate doctrines. See Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 194 P.3d 709 (2008), see also Weddell v. Sharp, 131 Nev. 233, 241, 350 P.3d 80, 85 (2015) (modifying the standard for claim preclusion established in Five Star Capital).
In their answering brief, respondents argue that the dvd issue is moot, but that argument was not presented below and is therefore not addressed in this appeal. Any consideration of this point should take place in the district court in the first instance.
Retaliation claim
Next, McKinley argues that there are genuine issues of material fact precluding summary judgment as to his retaliation claims. "A prisoner alleging retaliation for the exercise of his or her First Amendment rights must demonstrate that (1) the prisoner engaged in protected conduct, (2) a state actor took adverse action against the prisoner, (3) the adverse action was taken because of the prisoner's protected conduct, (4) the adverse action had a chilling effect on the prisoner's protected conduct, and (5) the adverse action did not reasonably advance a legitimate correctional goal." Angel v. Cruse, 130 Nev. 220, 225, 321 P.3d 895, 898 (2014). Here, respondents maintain that McKinley could not establish that the adverse action was taken because of the protected conduct and that the action did not reasonably advance a legitimate correctional goal. However, there are genuine issues of material fact remaining as to both of these elements, which preclude summary judgment.
We note that the district court's order indicates that McKinley alleged retaliation in the form of removal from the law library for complaining about his legal mail and being issued a notice of charges because he exercised his rights to complain about mail being opened outside his presence, which is what respondents' motion for summary judgment indicated. But respondents' answering brief seems to indicate that the retaliation claim related to McKinley saying "clown" to Main, as part of their argument was that this statement was not protected by the First Amendment because "clown" is a fighting word. Therefore, it appears that there are potentially three retaliation claims at issue in this case.
First, there is a factual dispute as to whether or not McKinley became aggressive and/or threatening while addressing the law librarian's allegedly improper opening of his mail, and in response to correctional officer Main telling him to leave. McKinley provided a declaration in which he states that he simply told the law librarian she knew she was not supposed to open his mail outside of his presence and that he was then told to take a hike by Main. He states that he then looked at Main and said "clown" in a calm normal voice and turned to leave, at which point he was told to get up against the wall, was handcuffed in a rough manner, and was taken to operations. Respondents, on the other hand presented evidence below that McKinley was told by the law librarian to leave but he refused, that he raised his voice, that he became loud, argumentative and aggressive in body language and tone, that he stepped close into Main and angrily called him a clown and that it was at that point that he was handcuffed and taken to operations. Below, the district court accepted respondents' version of events, finding that McKinley had become aggressive and argumentative. But like the case at issue in Angel, "[i]n so doing, the district court failed to properly apply the well-established standard for evaluating summary judgment motions, which required it to construe the evidence in [McKinley's] favor." Id. at 226, 321 P.3d at 899. Resolution of these disputed factual issues in McKinley's favor could potentially result in a reasonable jury finding that adverse action was taken because of McKinley's exercise of his First Amendment rights in raising his concerns regarding his mail with the law librarian, rather than based on the disputed interaction between McKinley and Main in the library. Therefore, construing the facts in McKinley's favor, there is sufficient evidence to raise a genuine issue of material fact with regard to whether the adverse action was taken because of McKinley's exercise of protected conduct. See id. at 226-27, 321 P.3d at 899; Wood, 121 Nev. at 729, 121 P.3d at 1029.
It is also noteworthy that respondents effectively admitted that a factual dispute existed as to this situation in their motion for summary judgment when they stated "[w]hen provided this evidence, a fair-minded juror will likely find that the version of events as depicted by the CO and Law Librarian is the more credible version" and in their reply when they stated "a rational juror is likely to find that the handcuffing and resulting charges were 'because of the Plaintiff['s] behavior and not 'because of his content of his complaints about his mail being opened." A similar statement was also included in their answering brief, albeit in relation to a different issue.
Similarly, there are issues of fact remaining related to whether McKinley received a notice of charges because of his behavior or because he exercised protected conduct, i.e., filing a grievance. McKinley stated in his declaration that he was initially told he would be given a notice of charges but that he was later told he would not receive one. His summary judgment opposition notes that he then waited until the time to serve such charges had passed before filing his grievance and that he was served with the notice of charges days later and the documents attached to respondents' motion for summary judgment support that assertion. McKinley asserts that the timing shows that the charges were in retaliation for filing the grievance. Respondents argue the charges were not retaliatory and presented evidence indicating that the charges were written on the day of the incident and the only reason they were delayed in being served was because of a staff shortage. Again, the evidence must be viewed in a light most favorable to McKinley and when that is done, there is enough evidence to show a genuine issue of material fact as to the motivation for the notice of charges. See Angel, 130 Nev. at 226, 321 P.3d at 899 (noting that "[w]hile the timing of a punishment alone is not sufficient to establish motivation, it may be circumstantial evidence of motivation"); Wood, 121 Nev. at 729, 121 P.3d at 1029.
Likewise, these same factual issues are relevant to the issue of whether the adverse action reasonably advanced a legitimate correctional goal. For example, promoting safety is a legitimate concern for a correctional facility, and if Main's actions in handcuffing and removing McKinley from the library were a result of threatening and/or aggressive behavior, such actions would arguably be promoting safety. But if a factual inquiry revealed that McKinley was not aggressive or threatening "then it would follow that the action was not taken out of a concern for prison safety." Angel, 130 Nev. at 227, 321 P.3d at 899-900. Because there are disputed material facts regarding the retaliation claims, summary judgment was improper and we therefore reverse that portion of the district court's order. See Wood, 121 Nev. at 729, 121 P.3d at 1029.
Due process claims
Turning to McKinley's due process claims, he argues that he was denied due process during the disciplinary hearing because he wanted to call certain witnesses but was not allowed to do so. He also challenges whether there was some evidence to support the hearing officer's decision. In relation to prison disciplinary hearings, due process entitles a prisoner to: 1) advance written notice of the charges, 2) a qualified opportunity to call witnesses and present evidence, and 3) a written statement by the fact-finder of the evidence relied upon. See Wolff v. McDonnell, 418 U.S. 539, 563-69 (1974). Additionally, some evidence must support the disciplinary hearing officer's decision. Superintendent v. Hill, 472 U.S. 445, 455 (1985). Here, while McKinley was not allowed to call all of his witnesses, he was allowed to call one witness, which did not run afoul of his qualified right to call witnesses. See Wolff, 418 U.S. at 566-67. Additionally, he was given advance written notice of the charges and a statement by the fact-finder of the evidence relied upon. And the record shows there was some evidence to support the outcome of the hearing. See Superintendent, 472 U.S. at 455. As such, summary judgment was proper on his due process claims relating to the disciplinary hearing and that part of the district court's order is affirmed. See Wood, 121 Nev. at 729, 121 P.3d at 1029.
Claims relating to the alleged opening of legal mail
Next, the district court appears to have granted summary judgment to respondents on McKinley's First, Fourth and Fourteenth Amendment claims that were raised under part three of his complaint relating to the allegedly improper opening of his legal mail. But in addressing these claims, the district court mixed the standards for granting summary judgment and dismissal for failure to state a claim by stating that, after reviewing the motions and testimony, the court finds McKinley failed to state a claim. See NRCP 12(b)(5), 56.
However, since the court's decision was based upon the review of testimony and the motions, including the exhibits attached thereto, and not just the complaint, the court would have been required to treat respondents' motion as one seeking summary judgment and resolve the motion under the governing standard for such relief. See NRCP 12(b) (stating that, in the context of an NRCP 12(b)(5) motion, if a party presents matters outside the pleadings and the court does not exclude them "the motion shall be treated as one for summary judgment and disposed of as provided in [NRCP] 56"). And because the challenged order was necessarily granting summary judgment on McKinley's legal mail based claims, reversal is required because the order fails to set out the undisputed material facts and legal conclusions upon which the district court was basing its determination. See NRCP 56(c) (requiring the court to state the legal and factual reasons for its grant of summary judgment); see also ASAP Storage, Inc. v. City of Sparks, 123 Nev. 639, 656-57, 173 P.3d 734, 746 (2007) (reversing and remanding a portion of a district court order granting summary judgment because the order failed to set forth the undisputed material facts and legal determinations supporting its decision). As a result, we reverse the grant of summary judgment as to McKinley's legal mail based claims and remand this issue for further proceedings.
Remaining issues
Turning to McKinley's NIED and IIED claims, while he baldly asserts that there were genuine issues of material fact remaining with regard to these claims, he fails to provide any cogent argument regarding the same in his briefs. As a result, we need not consider these issues. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (declining to consider issues that are not supported by cogent argument). Summary judgment as to these claims is therefore, affirmed. Additionally, McKinley's brief did not address the grant of summary judgment to LeGrand and Foster on the basis that they did not personally participate in the alleged violations and therefore, he has waived this issue. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (stating that issues not raised in appellant's opening brief are waived). Thus, summary judgment as to LeGrand and Foster is affirmed.
As to the respondents' argument that they are entitled to qualified immunity, this issue was not presented below and it is therefore not addressed in this appeal because it should be raised in and addressed by the district court in the first instance. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (noting that issues not raised in the trial court will not be considered on appeal).
Based on the foregoing, we
ORDER the judgment of the district court AFFIRMED IN PART AND REVERSED IN PART AND REMAND this matter to the district court for proceedings consistent with this order.
Insofar as the parties raise arguments, either in the appellate briefs or in other filings, that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Hon. Jim C. Shirley, District Judge
Gary E. McKinley
Attorney General/Las Vegas
Pershing County Clerk