Donald Hixon v. Nevada Department of Corrections; Paul Herman Chaffee

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD HIXON,
Plaintiff - Appellant,
v.
NEVADA DEPARTMENT OF
CORRECTIONS; PAUL HERMAN
CHAFFEE,
Defendants - Appellees.
No. 09-16979
D.C. No. 2:07-cv-01150-PMP-RJJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted December 8, 2010
San Francisco, California
Before: HUG, D.W. NELSON and McKEOWN, Circuit Judges.
Nevada state prisoner Donald Hixon appeals the district court’s denial of his
motion to reconsider its grant of summary judgment in favor of the Nevada
Department of Corrections (“NDOC”) and Paul Herman Chaffee in his 42 U.S.C. §
FILED
JAN 20 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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1983 action asserting that prison officials used excessive force against him. This
court has jurisdiction under 28 U.S.C. § 1291 because a final judgment was entered
for defendants and against plaintiff on July 8, 2009.
We review the denial of a motion for reconsideration for abuse of discretion.
Nunes v. Ashcroft, 375 F.3d 805, 807-08 (9th Cir. 2004). Reconsideration is
proper if the district court (1) is presented with newly discovered evidence;
(2) committed clear error or the determination was manifestly unjust; or (3) an
intervening change in the law occurred. Id. We review de novo the dismissal of
claims for failure to exhaust remedies under the Prison Litigation Reform Act
(“PLRA”). Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003).
We hold that the district court abused its discretion in denying Hixon’s
motion for reconsideration and reverse that ruling. Defendants disclosed evidence
related to the shooting investigation to Hixon in March 2009 after all summary
judgment motions and responses had been filed with the court. Because receipt of
the new evidence may impact whether defendants waived the administrative
remedy exhaustion requirement, it was error to deny the motion for
reconsideration. See Nunes, 375 F.3d at 807-08 (stating standard). Moreover,
Hixon was told that the shooting investigation would be handled only by the
Attorney General’s Office, that he was to speak only to the Attorney General’s

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Office regarding the incident, and that the investigation was outside the prison’s
province. Because Hixon was told the prison would not be handling the incident
and that all communications were to go only to the Attorney General’s Office, it is
likely that administrative remedies were effectively unavailable and exhaustion
was not required under the circumstances. See Sapp v. Kimbrell, 623 F.3d 813,
822-23 (9th Cir. 2010); Nunez v. Duncan, 591 F.3d 1217, 1226 (9th Cir. 2010).
Similarly, it is likely that there was not a failure to exhaust under Nevada Revised
Statute § 41.0322 since filing a grievance with the prison appeared futile. See
Malecon Tobacco, LLC v. State ex rel. Dep’t of Taxation, 59 P.3d 474, 476 (Nev.
2002).
Therefore, we reverse and remand to the district court for reconsideration of
the cross-motions for summary judgment in light of Hixon’s new evidence.
REVERSED and REMANDED.

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