Church Jr v. Nevada Department of Corrections et al

Filing 47

ORDER. IT IS ORDERED, ADJUDGED, and DECREED that 46 Magistrate Judge Albregts's R&R be, and the same hereby is, ADOPTED. IT IS FURTHER ORDERED that 39 plaintiff's motion for leave to file a second amended complaint be, and the same h ereby is, DENIED. IT IS FURTHER ORDERED that 28 plaintiff's motion to prohibit defendant from seizing and searching legal documents be, and the same hereby is, DENIED as moot. Signed by Judge James C. Mahan on 11/13/2019. (Copies have been distributed pursuant to the NEF - ADR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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AVERY ALLEN CHURCH, JR.,

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Case No. 2:18-CV-53 JCM (DJA)
Plaintiff(s),

ORDER

v.
NEVADA DEPARTMENT OF
CORRECTIONS, et al.,
Defendant(s).

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James C. Mahan
U.S. District Judge

Presently before the court is plaintiff Avery Allen Church Jr.’s (“plaintiff”) motion for
leave to file a second amended complaint. (ECF No. 39). Defendants Loaan, Lozano, and
Padillo (collectively “defendants”) filed a response (ECF No. 43), to which plaintiff replied
(ECF No. 44).
Also before the court is Magistrate Judge Albregts’s report and recommendation
(“R&R”) recommending that plaintiff’s motion for leave to file a second amended complaint be
denied. (ECF No. 46). Plaintiff did not file an objection, and the time to do so has passed.
Also before the court is plaintiff’s motion to prohibit defendant from seizing and
searching legal documents. (ECF No. 28). Defendants filed a response (ECF No. 29), to which
plaintiff replied (ECF No. 31).
This court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely objects
to a magistrate judge’s report and recommendation, then the court is required to “make a de novo
determination of those portions of the [report and recommendation] to which objection is made.”
28 U.S.C. § 636(b)(1).

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Where a party fails to object, however, the court is not required to conduct “any review at

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all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149

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(1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a

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magistrate judge’s report and recommendation where no objections have been filed. See United

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States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made).

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Nevertheless, this court conducted a de novo review to determine whether to adopt the

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recommendation of the magistrate judge. Upon reviewing the recommendation and attendant

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circumstances, this court finds good cause appears to adopt the magistrate judge’s findings in

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full.
The court now turns to plaintiff’s motion to prohibit defendant from seizing and

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searching legal documents. Defendants aver as follows:
Although Plaintiff’s request was file stamped on July 19, 2019, he
prepared it on July 14, 2019. ECF No. 28 at 1. Additionally, the
envelope is dated July 15, 2019. ECF No. 28 at 3. Plaintiff
received and signed for his property on July 15, 2019, the day after
writing a letter claiming he has not yet received his property. The
letter however was not filed until July 19, 2019, four days after
having received the property. This appears to just be odd timing. In
any event, Plaintiff has already received the property he is
claiming NDOC is withholding from him, and therefore Plaintiff’s
request is moot and should be denied.

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(ECF No. 29 at 4). Because plaintiff’s belongings were returned to him, the court denies his

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motion as moot.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, and DECREED that Magistrate Judge

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Albregts’s R&R (ECF No. 46) be, and the same hereby is, ADOPTED.
IT IS FURTHER ORDERED that plaintiff’s motion for leave to file a second amended

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complaint (ECF No. 39) be, and the same hereby is, DENIED.

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James C. Mahan
U.S. District Judge

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IT IS FURTHER ORDERED that plaintiff’s motion to prohibit defendant from seizing
and searching legal documents (ECF No. 28) be, and the same hereby is, DENIED as moot.
DATED November 13, 2019.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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