Cherry v. Shedd et al

Filing 87

ORDER ADOPTING REPORT AND RECOMMENDATIONS - IT IS HEREBY ORDERED that the 82 Report and Recommendations is ADOPTED IN ITS ENTIRETY and the Defendant's 71 Motion for Summary Judgment is GRANTED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

STEPHEN A. CHERRY,

Case No. 3:10-CV-00271-EJL-REB

Plaintiff,

ORDER ON REPORT AND
RECOMMENDATION

v.
DWAYNE SHEDD, JEFF KIRKMAN,
RANDY HIGGINS, ANDREA
BLADES, BRENT REINKE and
JESSICA LORELLO,
Defendants.

On August 15, 2016, Chief United States Magistrate Ronald E. Bush issued a
Report and Recommendation (“Report”), recommending that Defendant’s Motion for
Summary Judgement be granted. (Dkt. 82.)1 Any party may challenge the Magistrate
Judge=s proposed recommendation by filing written objections within fourteen days after
being served with a copy of the Report. 28 U.S.C. § 636(b)(1)(C). The district court must
then “make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” Id. The district court may
accept, reject, or modify in whole or in part, the findings and recommendations made by
the Magistrate Judge. Id.; see also Fed. R. Civ. P. 72(b).

1 The Magistrate Judge also issued an Order on several non-dispositive motions. (Dkt. 82.)

ORDER ON REPORT AND RECOMMENDATION- 1

Plaintiff filed objections to the Report arguing it erred in its conclusions and
findings. (Dkt. 85.) The Defendant has filed a response and the matter is ripe for this
Court’s consideration. Fed. R. Civ. P. 72; Local Civ. R. 73.1.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court “may accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.” Where
the parties object to a report and recommendation, this Court “shall make a de novo
determination of those portions of the report which objection is made.” Id. Where,
however, no objections are filed the district court need not conduct a de novo review. To
the extent that no objections are made, arguments to the contrary are waived. See Fed. R.
Civ. P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within
fourteen days of service of the Report and Recommendation). “When no timely objection
is filed, the Court need only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Advisory Committee Notes to Fed. R. Civ. P. 72
(citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).
In this case, Plaintiff filed objections and the Court has conducted a de novo review
of those portions of the Report. The Court has also reviewed the entire Report as well as the
record in this matter for clear error on the face of the record and finds as follows.
DISCUSSION
The factual and procedural background of this case are well stated in the Report and
not objected to by the parties. As such, the Court adopts the Report’s recitation of the
ORDER ON REPORT AND RECOMMENDATION- 2

general background of the case. (Dkt. 82.) The dispute concerns the Plaintiff’s, Stephen
Cherry, First Amendment access-to-court claims against Defendant Randy Higgins. In
general, the Plaintiff’s claims allege the Defendant Higgins confiscated some legal
materials and evidence relating to the Plaintiff’s state criminal case when he was scheduled
to be transferred to an out-of-state prison. (Dkt. 59.) Defendant Higgins filed the instant
Motion for Summary Judgment arguing the Plaintiff has failed to show he suffered an
“actual injury” as a result of his legal materials being lost. (Dkt. 71.)
The Report concludes that Plaintiff has provided no evidence that he suffered an
actual injury from the alleged loss of his legal materials. (Dkt. 82.) Namely, the Plaintiff
has not established any link between the dismissal of his habeas petition and the alleged
denial of his access to courts because the dismissals were procedural. In his objections,
Plaintiff maintains his state criminal convictions were illegally obtained and that
overwhelming material facts need to be heard by a jury and, therefore, the Report erred in
granting the Motion for Summary Judgment. (Dkt. 85.) Defendant maintains the Plaintiff
has failed to offer any evidence showing that he has suffered an actual injury to support his
claim that he was denied access to the courts. (Dkt. 86.) Specifically, that there is no
evidence in this case showing the Plaintiff’s Federal Habeas case or his motions in his
Kootenai County case were dismissed because his legal material had been confiscated by
the Defendant. (Dkt. 86.)

ORDER ON REPORT AND RECOMMENDATION- 3

The Court has reviewed this issue de novo in light of the arguments made by the
parties both in their objections to the Report as well as in their initial briefing on the
summary judgment motions. Having done so, this Court agrees with the Report=s
conclusion and recommendation. There is no evidence that any confiscation of the
Plaintiff’s legal materials was the basis for the dismissal of the Plaintiff’s other cases or has
prevented the Plaintiff from filing future legal complaints. Therefore, the Plaintiff has not
shown an actual injury to support his claims in this case. For that reason, the Court agrees
with the Report that summary judgment should be granted on Plaintiff’s claims against the
Defendant Higgins. In reaching this conclusion, the Court is mindful of the fact that the
Plaintiff is a pro se litigant. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014);
Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013).
ORDER
NOW THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on August 15, 2016 (Dkt. 82) is ADOPTED IN ITS
ENTIRETY and the Defendant’s Motion for Summary Judgment (Dkt. 71) is
GRANTED.
September 27, 2016

ORDER - 4