                                                                           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                           NOT FOR PUBLICATION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.




                                          3
      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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