Nible v. Fink et al

Filing 83

ORDER granting Defendant's 62 Motion to Dismiss for Failure to State a Claim. Court adopts 75 Report and Recommendation. Because this concludes the litigation, the Clerk is instructed to close the file. Signed by Judge Cynthia Bashant on 7/30/2019. (All non-registered users served via U.S. Mail Service) (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM L. NIBLE,
Plaintiff,

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Case No. 16-cv-02849-BAS-RBM
ORDER (1) ADOPTING REPORT
AND RECOMMENDATION; AND (2)
GRANTING DEFENDANT’S
MOTION TO DISMISS

v.
FINK, et al.,
Defendants.

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[ECF Nos. 62, 75]

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Plaintiff William L. Nible, a California prisoner proceeding pro se and in forma

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pauperis, filed a lawsuit against several staff members of the Richard J. Donovan

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Correctional Facility (“RJD”) in San Diego, California. After engaging in discovery,

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Plaintiff moved to amend his complaint because he learned the identity of a Doe Defendant,

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i.e., Defendant Stratton. (ECF No. 44.) The Court granted the motion and Plaintiff filed

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an amended complaint, naming, inter alia, Defendant Stratton.

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At this point, all other Defendants in the case have been dismissed and only the

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claims against Defendant Stratton remain. Defendant Stratton moves to dismiss the claims

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against him. (ECF No. 62.) Magistrate Judge Ruth Bermudez Montenegro issued a Report

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and Recommendation (“R&R”) recommending that this Court grant the motion to dismiss
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in its entirety. (“R&R,” ECF No. 75.) Judge Montenegro ordered any objections to be

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filed within thirty days of the issuance of the R&R. (Id. at 23.) Plaintiff requested, and the

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Court granted, a 30-day extension in which to file objections. (ECF Nos. 80, 81.) Despite

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the extension, no objections have been filed.

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Having reviewed the briefing on the motion to dismiss and Judge Montenegro’s

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R&R, the Court ADOPTS the R&R.

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I.

BACKGROUND

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Judge Montenegro’s R&R contains a thorough and accurate recitation of the factual

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and procedural histories underlying the instant motion. (R&R at 1–3.) This Order

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incorporates by reference the background as set forth therein.

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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court’s duties regarding a magistrate judge’s report and recommendation. The district court

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“shall make a de novo determination of those portions of the report . . . to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also

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United States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely

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objection, however, “the Court need only satisfy itself that there is no clear error on the

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face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory

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committee’s note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)).

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III.

ANALYSIS

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Plaintiff alleges Defendant Stratton mishandled Plaintiff’s grievance and a citizen’s

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complaint filed by Plaintiff’s family member. (Second Amended Complaint, ECF No. 46,

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¶¶ 7, 18, 21.) Plaintiff alleges by “fail[ing] to process Plaintiff’s grievance” and in making

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false statements in response to the citizen’s complaint, Stratton deprived Plaintiff of his

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Fourteenth Amendment due process rights, First Amendment right to petition for redress,

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equal protection rights, Eighth Amendment right to be free from cruel and unusual

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punishment, and also violated the Religious Land Use and Institutionalized Persons Act

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(“RLUIPA”). (Id. ¶¶ 31, 32.)

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A.

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It is not entirely clear how Plaintiff alleges Stratton violated Plaintiff’s due process

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rights. To the extent Plaintiff alleges Stratton violated Plaintiff’s due process rights by

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mishandling a grievance, Judge Montenegro found that “[t]he improper handling of

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grievances is not a cognizable due process claim.” (R&R at 5.) The Court agrees. See

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Wise v. Wash. State Dep’t of Corr., 244 F. App’x. 106, 108 (9th Cir. 2007) (“An inmate

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has no due process rights regarding the proper handling of grievances.”). Further, to the

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extent Plaintiff alleges Stratton violated Plaintiff’s rights through a deprivation of his

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property, Judge Montenegro found that because Plaintiff has adequate postdeprivation

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remedies, his rights were not violated. The Court analyzed this issue in its prior order as it

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relates to two other Defendants. (ECF No. 79, at 4.) The same result applies here. Because

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Plaintiff had access to, and in fact used, an adequate postdeprivation remedy after the

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confiscation of the rune set, there was no violation of Plaintiff’s due process rights.

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Therefore, the Court ADOPTS the R&R and GRANTS Defendant’s motion to dismiss

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this claim.

Due Process Cause of Action

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B.

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Plaintiff concedes that certain causes of action may be dismissed: his RLUIPA, First

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Amendment, equal protection, and Eighth Amendment claims. (R&R at 7–8 (citing ECF

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No. 69, at 4).) Therefore the Court ADOPTS the R&R and GRANTS Defendant’s motion

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to dismiss these claims.

Remaining Causes of Action

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C.

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Judge Montenegro recommends dismissing Plaintiff’s claims with prejudice because

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allowing Plaintiff to amend his claims would be futile. (R&R at 9.) Judge Montenegro

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determined leave to amend would be futile because Plaintiff agrees to the dismissal of four

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of his claims and his remaining claim is barred by law. The Court agrees.

Leave to Amend

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IV.

CONCLUSION

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For the foregoing reasons, the Court ADOPTS the R&R, (ECF No. 75) and

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GRANTS Defendant Stratton’s motion to dismiss, (ECF No. 62). Because this concludes

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the litigation, the clerk is instructed to close the file.

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IT IS SO ORDERED.
DATED: July 30, 2019

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