McGuire v. State of Nevada ex rel. Department of Corrections et al

Filing 39

ORDER. IT IS ORDERED that the Magistrate Judge's Report and Recommendation 30 entered on 9/1/2011, is adopted and accepted, and Defendant's Motion to Dismiss 13 is GRANTED in part and DENIED in part. (See Order for specifics). IT IS SO ORDERED. Signed by Judge Larry R. Hicks on 1/6/2012. (Copies have been distributed pursuant to the NEF - MLC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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*****

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ROBERT MCGUIRE,

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Plaintiff,
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v.
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E.K. MCDANIEL,
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Defendant.
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_____________________________________ )

3:10-cv-00800-LRH-RAM
ORDER

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Before this Court is the Report and Recommendation of U.S. Magistrate Judge Robert A.

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McQuaid, Jr. (#301) entered on September 1, 2011, recommending granting in part and denying in part

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Defendant’s Motion to Dismiss (#13) filed on May 16, 2011. Plaintiff filed his Objections to

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Magistrate Judge’s Report and Recommendation (#34) on September 12, 2011. Defendant filed his

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Objection to Report and Recommendation of U.S. Magistrate Judge and Response in Opposition to

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Plaintiff’s Objections to Magistrate Judge’s Report and Recommendation (#36) on September 15,

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2011. Plaintiff then filed a Reply to Defendant’s Opposition and Opposition to Defendant’s Objection

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to Magistrate Judge’s Report and Recommendation (#37) on September 29, 2011. This action was

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referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4 of the Local Rules

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of Practice of the United States District Court for the District of Nevada.

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Refers to court’s docket number.

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The Court has conducted its de novo review in this case, has fully considered the objections of

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the parties, the pleadings and memoranda of the parties and other relevant matters of record pursuant

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to 28 U.S.C. § 636 (b) (1) and Local Rule IB 3-2. The Court determines that the Magistrate Judge’s

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Report and Recommendation (#30) entered on September 1, 2011, should be adopted and accepted.

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IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and Recommendation (#30)

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entered on September 1, 2011, is adopted and accepted, and Defendant’s Motion to Dismiss (#13) is

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GRANTED in part and DENIED in part as follows:

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Defendant’s Motion to Dismiss (#13) is GRANTED without prejudice as to Plaintiff’s

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claim that his due process rights were violated because he was not given proper notice and a

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hearing concerning his initial classification to HRP status on August 24, 2008, and because of

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the failure to hold a classification review hearing until the time Plaintiff filed his informal level

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grievance.

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Defendant’s Motion to Dismiss (#13) is DENIED with respect to Plaintiff’s claim that

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his due process rights were violated as a result of Defendant’s alleged continuing failure to

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provide him with a classification hearing which resulted in the maintenance of his HRP status

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and enduring confinement in segregation, constituting an atypical and significant hardship in

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violation of his due process rights under the Fourteenth Amendment.

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IT IS SO ORDERED.

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DATED this 6th day of January, 2012.

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_______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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