Quintero et al v. Palmer et al

Filing 237

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATIONS OF MAGISTRATE JUDGE VALERIE P. COOKE ECF No. 224 Report and Recommendation; ECF Nos. 212 Motion to Alter or Amend, 219 Motion for Evidentiary Hearing, 218 Motion for Transcripts from the Settlement Conferences, and 228 Motion to Enforce the Settlement Agreement are denied. Signed by Judge Miranda M. Du on 01/27/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN QUINTERO,

Case No. 3:13-cv-00008-MMD-VPC
Plaintiff,

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v.
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JACK PALMER, et al.,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
VALERIE P. COOKE

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Defendants.
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I.

SUMMARY

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Valerie P. Cooke (ECF No. 224) (“R&R”) resolving three motions brought by

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Plaintiff John Quintero: motion to alter or amend the judgment (“Motion to Amend”) (ECF

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No. 212), motion for transcripts of settlement conferences (ECF No. 218), and motion for

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evidentiary hearing (ECF No. 219). The Court has reviewed Plaintiff’s objection

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(“Objection”) (ECF No. 226), Plaintiff’s supplement to his Objection (“Supplemental

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Objection”) (ECF No. 227), and Defendants’ response to Plaintiff’s Objection

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(“Response”) (ECF No. 230). For the reasons discussed below, the Court accepts and

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adopts the R&R in its entirety.

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In addition, since the issuance of the R&R, Plaintiff has filed a motion to enforce

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the settlement agreement (“Motion to Enforce”) (ECF No. 228). After review of the

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Motion to Enforce, Defendants’ response (ECF No. 233), Plaintiff’s reply (ECF No. 234),

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and Plaintiff’s supplemental reply (ECF No. 235), the Court finds that Plaintiff has not

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demonstrated that NDOC has failed to meet its obligations under the settlement

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agreement. The Court therefore denies Plaintiff’s Motion to Enforce.

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II.

BACKGROUND

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Plaintiff, proceeding pro se and in forma pauperis, is an inmate in the custody of

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Nevada Department of Corrections (“NDOC”) and is currently housed at Northern

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Nevada Correctional Center (“NNCC”) in Carson City. After amending his complaint

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several times, Plaintiff filed his Fourth Amended Complaint pursuant to 42 U.S.C. § 1983

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to assert a variety of claims, including alleged violations of Plaintiff’s First and Fourteenth

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Amendment rights as well as Plaintiff’s rights under the Religious Land Use and

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Institutionalized Persons Act (“RLUIPA”). (See ECF No. 105.) The relevant background

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facts, which the Court adopts, are set out in the R&R. (See ECF No. 224 at 1-2.)

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In February 2016, the parties participated in a settlement conference before the

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Magistrate Judge and reached resolution on a settlement agreement (“Settlement

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Agreement”) to resolve this case. (ECF No. 189.) The Court subsequently granted the

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parties’ stipulation of dismissal on May 6, 2016. (ECF No. 207.) At issue in Plaintiff’s

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various motions and upon which the Magistrate Judge made her recommendation is

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whether the Court should amend the judgment to allow Count X, which the parties had

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agreed to dismiss with prejudice (ECF No. 200), to go forward. (ECF No. 212 at 1.)

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III.

PLAINTIFF’S OBJECTIONS TO R&R

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A.

Legal Standard

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This Court “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). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

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to object, however, the court is not required to conduct “any review at all . . . of any issue

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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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

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

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of review employed by the district court when reviewing a report and recommendation to

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which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

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view that district courts are not required to review “any issue that is not the subject of an

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objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

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Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

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which no objection was filed).
In light of Plaintiff’s Objection, the Court conducts a de novo review to determine

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whether to adopt the R&R.

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B.

Jurisdiction

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In the R&R, the Magistrate Judge first considers whether this Court has

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jurisdiction to address Plaintiff’s pending motions (ECF Nos. 212, 218 and 219). (ECF

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No. 224 at 2-3.) Plaintiff filed the Motion to Amend (ECF No. 212) four days before filing

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notice of an appeal of this Court’s dismissal order (ECF No. 213). Under Federal Rule of

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Appellate Procedure 4(a)(4), a notice of appeal becomes effective only upon entry of an

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order disposing of the Rule 59(e) motion. Miller v. Marriott Int’l Inc., 300 F.3d 1061,

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1063-64 (9th Cir. 2002). The Magistrate Judge therefore correctly found that the Court

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has jurisdiction to consider the Motion to Amend and related motions.

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C.

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Plaintiff asks the Court to amend the judgment to allow Count X to proceed. In

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Count X, Plaintiff challenged NDOC’s policy of allowing inmates to possess religious

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hardcover books without their covers but otherwise banning all secular hardcover books.

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(ECF

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misrepresentations during the settlement conference in order to “trick” him into agreeing

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to dismiss Count X with prejudice. (ECF No. 212 at 2.)

No.

Motion to Amend

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at

21-22.)

Plaintiff

contends

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that

Defendants

made

certain

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Although not mentioned in the Federal Rules of Civil Procedure, motions for

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reconsideration may be brought under Rules 59(e) and 60(b).1 Rule 59(e) provides that

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any motion to alter or amend a judgment shall be filed no later than 28 days after entry

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of the judgment. The Ninth Circuit has held that a Rule 59(e) motion for reconsideration

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should not be granted “absent highly unusual circumstances, unless the district court is

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presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange Street Partners v.

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Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). Specifically, under Rule 59(e), a court may

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alter or amend a judgment: “(1) if such motion is necessary to correct manifest errors of

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law or fact upon which the judgment rests; (2) if such motion is necessary to present

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newly discovered or previously unavailable evidence; (3) if such motion is necessary to

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prevent manifest injustice; or (4) if the amendment is justified by an intervening change

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in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). Thus,

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a motion for reconsideration must set forth the following: (1) some valid reason why the

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court should revisit its prior order; and (2) facts or law of a “strongly convincing nature” in

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support of reversing the prior decision. Frasure v. United States, 256 F. Supp. 2d 1180,

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1183 (D. Nev. 2003).

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Plaintiff has not presented a valid reason for the Court to amend the judgment.

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The Court will address the pertinent grounds for not amending the judgment under Rule

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59(e).
1.

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Newly Discovered or Previously Unavailable Evidence

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This Court agrees with the Magistrate Judge’s finding that evidence about a prior

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settlement agreement between NDOC and Prison Legal News (“PLN Agreement”) does

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Magistrate Judge addressed both Rules 59(e) and 60(b) despite the fact that
only Rule 59(e) was mentioned in the motion’s caption. (ECF No. 224 at 5.) The Court
agrees with the Magistrate Judge’s discussion of both rules but chooses to analyze the
motion under only Rule 59(e)’s framework, as the Motion to Amend was brought within
the required 28-day timeframe.

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not constitute “new evidence” that would justify reconsideration of the court’s order

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dismissing Count X. (ECF No. 224 at 6.) Under Rule 59(e), the moving party must

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demonstrate that the “evidence was discovered after the judgment, that the evidence

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could not be discovered earlier through due diligence, and that the newly discovered

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evidence is of such a magnitude that had the court known of it earlier, the outcome likely

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would have been different.” Dixon v. Wallowa Cnty., 336 F.3d 1013, 1022 (9th Cir.

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2003).

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Plaintiff alleges that Defendants misrepresented the effect of the PLN Agreement

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by informing Plaintiff that it required NDOC to ban all hardcover books, including both

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religious and secular ones, which induced him to settle Count X. (ECF No. 212 at 2-3, 8.)

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Plaintiff cites to an unpublished Ninth Circuit decision, Ashker v. Schwarzenegger, 339

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Fed. Appx. 751 (9th Cir. 2009), holding that a blanket ban on hardcover books is

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unconstitutional to allege that the failure of Defendants to provide a full copy of the PLN

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Agreement before settlement negotiations amounted to a lack of notice of previously

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unavailable evidence. (ECF No. 226 at 6.)

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The Court is unsure how the PLN Agreement would constitute new evidence

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discovered after the settlement or the order of dismissal. Plaintiff did not discover the

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PLN Agreement after the settlement agreement was finalized; rather, he was informed of

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its existence and its supposed content at the time of negotiations. Plaintiff chose to

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continue the negotiations instead of asking for the opportunity to review the PLN

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Agreement and/or requesting to continue with the negotiations at a later point in time.

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In addition, Plaintiff appears to suggest that because Defendants allegedly stated

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there would be an eventual ban on all hardcover books under the PLN Agreement,

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Defendants made a misrepresentation to Plaintiff that Ashker had been overturned. (See

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id. at 12.) The Magistrate Judge properly found a lack of evidence that Defendants

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somehow tricked Plaintiff into settling. Moreover, the Ashker decision is unpublished and

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therefore not binding precedent; unpublished decisions are binding on the parties to the

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case but cannot be cited as authority. 9TH CIR. R. 36-3(a) (“Unpublished dispositions
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and orders of [the Ninth Circuit Court of Appeals] are not precedent, except when

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relevant under the doctrine of law of the case or rules of claim preclusion or issue

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preclusion.”). Therefore, Plaintiff’s reliance on Ashker is misplaced.

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2.

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Manifest Errors of Law or Fact Upon Which the Judgment
Rests

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Because the Ashker decision does not establish that a prison’s policy to ban all

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hardcover books is unconstitutional,2 the Court’s acceptance of the stipulation does not

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amount to a “manifest error of law.” (See ECF No. 226 at 6.) Additionally, Plaintiff does

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not allege that Defendants expressly told him that Ashker was no longer “good law.”

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(See ECF No. 212 at 2.) The real crux of Plaintiff’s Motion to Amend is that he himself

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misunderstood why Defendants may have mentioned the PLN Agreement’s alleged

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future ban on all hardcover books — i.e., instead of realizing that Ashker did not amount

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to controlling law that Defendants were required to comply with, Plaintiff assumed that

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the case had been overturned and that NDOC was, as a result, banning all hardcover

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books because it had become constitutionally permissible (which it currently is3). The

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Court therefore agrees with the Magistrate Judge’s finding that Plaintiff waived any

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potential constitutional claim he could have brought against an all-out ban on hardcover

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books when he settled this case.
3.

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Manifest Injustice

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Manifest injustice exists where there is a flaw in the court’s decision that without

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correction would lead to inequitable results. See In re Bunting Bearings Corp., 321 B.R.

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420, 423 (N.D. Ohio 2004).

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Here, the Court accepted the stipulation agreed upon by the parties that

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dismissed Count X with prejudice. The Settlement Agreement does not amount to an

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unconstitutional

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waiver

of

Plaintiff’s

2As

rights;

rather,

the

Settlement

noted, the unconstitutionality of the book ban at issue in Ashker applies only
to that case.
3Currently, neither the Ninth Circuit nor the Supreme Court has published a
decision making a prison’s ban on all hardcover books unconstitutional.

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Agreement amounts to a waiver of the right to pursue a claim that may have been

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successful on constitutional grounds. Further, the facts as alleged by Plaintiff fail to show

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that Plaintiff waived the ability to pursue Count X because of some affirmative

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misrepresentation on the part of Defendants. Rather, the waiver appears to stem from

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Plaintiff’s own misunderstanding of the import of the Ashker decision. This Court

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therefore agrees with the Magistrate Judge’s finding that there was no manifest injustice

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requiring an alteration of the judgment.
4.

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Intervening Change in Controlling Law

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Additionally, there has been no intervening change in controlling law that would

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require this Court to amend or alter the Court’s order of dismissal because there has

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been no published Ninth Circuit or Supreme Court case law establishing that a prison’s

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all-out ban on hardcover books is unconstitutional.
The Court therefore accepts the Magistrate Judge’s recommendation to deny

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Plaintiff’s Motion to Amend.

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D.

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Motions for Transcripts from Settlement Conference and Evidentiary
Hearing

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Plaintiff also requests transcripts of the settlement conferences held on August

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25, 2015, and February 23, 2016 (ECF No. 218), as well as an evidentiary hearing on

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the Motion to Amend (ECF No. 219). Taking Plaintiff’s allegations concerning what

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Defendants said about the PLN Agreement during the settlement negotiations as true,

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these facts do not support Plaintiff’s contention that Defendants affirmatively

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misrepresented the constitutionality of an all-out ban on hardcover books. Plaintiff’s

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motions for transcript and for evidentiary hearing are therefore denied.

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IV.

MOTION TO ENFORCE

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Plaintiff contends that Defendants have “abdicated” their “rights” to enforce the

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terms of the Settlement Agreement. (ECF No. 228 at 2.) However, Plaintiff’s allegations

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do not show that Defendants have failed to comply with the terms of the Settlement

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Agreement. The Court therefore denies Plaintiff’s Motion to Enforce.
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A.

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The Settlement Agreement requires NDOC to fulfill seven obligations: (1) pay

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Plaintiff a total of $500 that must be deposited into two separate trust accounts within 30

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days of filing the stipulation to dismiss the case; (2) allow Quintero to apply to the

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Religious Review Team (“RRT”) for a plot of land in the outdoor religious site at NNCC

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and require that Warden Baca not oppose the application; (3) require that letters from

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inmates to ordained clergy volunteers be considered personal mail and therefore subject

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to Administrative Regulation (“AR”) 750; (4) revise Operational Procedure (“OP”) 722,

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implement this revision within 30 days of the settlement conference or before March 23,

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2016, and include in the revision a remedial measure to address instances where an

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inmate’s initial request for law library materials is not filled by the inmate law clerks or if

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those clerks misunderstand the request; (5) create eleven identical binders to be

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disseminated throughout NNCC, with each unit bubble receiving a binder, and Plaintiff

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must be consulted before the binder is finalized and distributed; (6) permit NDOC staff to

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assist Plaintiff if he is engaged in an approved education class that requires testing to be

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completed in front of proctors, although no staff member is required to proctor the test;

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and, (7) reinstate Alcoholics Anonymous (“AA”) meeting times in the Chapel schedule

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with separate meeting times for English participants and for Spanish participants, but

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NDOC requires that a non-inmate volunteer lead these meetings or otherwise the

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meetings will not occur. (ECF Nos. 199-1 at 4-7, 228 at 17-20.)

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Settlement Agreement

Section IV of the Settlement Agreement provides as follows with respect to
jurisdiction for future enforcement actions:
In the event that QUINTERO feels that the NDOC is not living up to its end
of the bargains contained herein and wishes to institute an enforcement
action, QUINTERO may, for the next two years from the date this
Agreement is fully executed, make a motion to the Court to reopen the
instant case number and seek enforcement of the terms herein. It is
acknowledged that the NDOC will oppose such a motion. Both parties
acknowledge that it will ultimately be up to the judge to decide whether to
reopen the case and retain jurisdiction for the purpose of enforcement. In
the event the judge elects not to do so, and in the event more than two
years have passed since the full execution of this Agreement, both parties

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acknowledge that either party may bring an action for breach of contract in
state court.

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(ECF No. 199-1 at 7 (emphasis added).)

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B.

Analysis

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Plaintiff outlines five chief complaints in an attempt to show that NDOC has failed

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to meet its obligations under the Settlement Agreement.4 First, he states that he believes

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his RRT application is being opposed by Chaplain Stogner. (ECF No. 228 at 3-4.)

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Second, he claims that the new requirement relating to inmate-clergy volunteer

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communications is being hindered by staff. (Id. at 4-5.) Third, he claims that OP 722 has

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not been promulgated as promised or alternatively that it has been suppressed by

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Pauline Simmons, the law librarian. (Id. at 5.) Fourth, he claims that although the legal

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binders have been disseminated as required, the binders fail to achieve their purpose of

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being a “starter legal binder” as envisioned by the parties. (Id.) Finally, Plaintiff claims

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that Spanish AA meetings have not been implemented and have been actively

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obstructed from taking place by Chaplin Stogner as well as by other NNCC staff. (Id. at

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5-6.) The Court will address each of Plaintiff’s complaints below.
1.

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RRT Application

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The requirement relating to the RRT application specifically says that Q[uintero]

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may apply to the Religious Review Team (RRT) for a plot of land in the current

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designated outdoor religious site at NNCC for Catholics to conduct particular religious

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activities during approved yard times. (ECF No. 199-1 at 4-5.) In turn, Quintero is

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required to follow all RRT application rules. The parties further agreed that Warden Baca

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would not oppose the RRT application and that no other religious denomination’s

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outdoor plot would be affected should the RRT grant the application. The last two

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Court does its best to understand the factual bases for Plaintiff’s motion but
finds that Plaintiff’s complaints regarding execution of the settlement agreement are
merely conclusory and fail to allege specific facts that demonstrate an abject failure on
the part of NDOC to execute the settlement agreement in good faith and with best
efforts.
4This

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sentences of the section discussing NDOC’s obligations to Quintero regarding the RRT

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Application provide further instructions to Quintero if the RRT is granted. (See id. at 5.)

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Plaintiff offers no specific facts to demonstrate that NDOC has failed to meet this

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requirement. He does not allege that Warden Baca has opposed his RRT application;

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rather, his complaint stems from the fact the application has yet to be granted and

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Plaintiff’s perception that Chaplain Stogner is the cause of the hindrance. Furthermore,

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the Settlement Agreement does not state that the RRT is required to grant Plaintiff’s

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application.
2.

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Inmate-Clergy Volunteer Communications

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The requirement relating to inmate-clergy volunteer communications states that

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“letters to ordained clergy volunteers are deemed personal mail” and that they are

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therefore subject to AR 750. (ECF Nos. 228 at 18, 199-1 at 5.) Plaintiff asserts that it is

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his opinion that this provision has been “hindered, impeded and obstructed by prison

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official dissuasion during formal volunteer training.” (ECF No. 228 at 4.) Plaintiff states

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that based on information and belief, no change in volunteer training has occurred. (Id.

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at 4, 5.) The Court is unsure of what Plaintiff’s complaint is here — Plaintiff fails to

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articulate any specific facts that demonstrate NDOC is not permitting letters from

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prisoners to ordained clergy to be subject to the personal mail regulation. Rather,

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Plaintiff mentions something about conflating “clergy and non-clergy volunteers.” As

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alleged, Plaintiff has not shown that Defendants have failed to comply with this

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requirement.

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3.

Operational Procedure 722

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The requirement relating to OP 722 in the Settlement Agreement states:

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OP 722 will be revised and implemented within thirty (30) days of the
settlement conference, or on or before March 23, 2016, and this revision
will provide for a new policy regarding inmate access to the law library. The
policy will allow for a remedial measure in the event an inmate’s initial
request for law library materials is not filled by the inmate law clerks or the
inmate law clerk’s [sic] misunderstand the request; specifically, the policy
will allow general population inmates to make an appointment to go to the
law library, such that they may work in-person [sic] with the inmate law
clerks or law librarians to obtain the legal materials they seek. It is

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anticipated that this policy will create a once-weekly time frame [sic] of one
hour in which inmates may seek these appointments.

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(ECF Nos. 228 at 18-19, 199-1 at 5-6.) Plaintiff alleges that either OP 722 has not been

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“promulgated as promised” or that law librarian Simmons is on her own or colluding with

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superior officers to suppress the new procedure. (ECF No. 228 at 5.) More specifically,

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Plaintiff claims that Simmons has been thwarting inmates’ direct access to research

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computers. (Id.) However, the Settlement Agreement does not make this a requirement

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for NDOC. Rather, the Settlement Agreement provides that general population inmates

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may work with an inmate law clerk. There is no mention in the Settlement Agreement

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that prisoners need to be given direct access to research computers. Therefore, the

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Court fails to see how NDOC has abdicated its obligations under the Settlement

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Agreement.

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4.

Legal Binders

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The requirement relating to the creation of legal binder states:

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Defendants agree to create eleven (11) identical binders, which will be
disseminated throughout NNCC, with each unit bubble receiving a binder.
The contents of these binders is [sic] listed in Addendum A to this
Agreement. No later than May 23, 2016, OP 722 will be amended to refer
to the existence of these binders and instruct inmates on the process for
obtaining access to these binders. These binders will be created and
disseminated to the unit bubbles on or before May 23, 2016. Prior to their
dissemination, the Defendants will have a one-time meeting with
QUINTERO to show him an example binder. Should QUINTERO feel
documents as listed on the Addendum are missing he will so instruct
Defendants, who will amend the binder to include the missing materials
before its dissemination.

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(ECF No. 228 at 6.) Plaintiff claims that the binders have been disseminated but that

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certain additional legal materials are necessary to make the binder “achieve its purpose

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of being a starter library.” (Id. (internal quotation marks omitted).) However, nowhere in

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the Motion to Enforce or attached exhibits does Plaintiff assert that Defendants failed to

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create the binders or distribute them, or that they failed to show Plaintiff the list of

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materials for the binder or for Plaintiff to have an input in what materials were placed in

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the binders. Instead, the facts as alleged demonstrate that, in retrospect, Plaintiff thinks
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additional information should be added to the binders. This is insufficient to show that

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Defendants have failed to comply with this provision of the Settlement Agreement.
5.

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Spanish AA meetings

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In the Settlement Agreement, the portion relating to AA meetings states:

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Defendants agree to reinstate Alcoholics Anonymous (AA) meeting times
in the Chapel schedule, such that AA meetings may now be held in both
the chapel and the Structured Senior Living Program. There will be a
scheduled AA meeting time for English participants and Spanish
participants. However, both parties acknowledge that, for an AA meeting in
any language to take place during the allotted chapel times, a non-inmate
volunteer must be present to lead the meeting(s) or no AA meeting can
take place.

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(ECF Nos. 228 at 19-20, 199-1 at 6-7.) Plaintiff alleges that Chaplain Stogner and other

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staff have obstructed the implementation of this requirement. More specifically, in one

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exhibit attached to the Motion to Enforce, Plaintiff described meeting with Chaplain

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Stogner to discuss a Spanish AA meeting time at the chapel at which point Stogner

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“disclaimed any authority to schedule the AA meeting at the chapel.” (ECF No. 228-1 at

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26.) Neither the Motion to Enforce or the Settlement Agreement itself specify that

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Chaplain Stogner is solely responsible for setting the chapel schedule. Furthermore,

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Stogner denies that he has the authority to set the schedule. (ECF No. 233-1 at 2-3.)

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Based on the facts as alleged, this Court does not find that NDOC has failed to

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fulfil its obligations regarding AA meeting times as required in the Settlement Agreement.

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of the

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pending motions.

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The

Court

accepts

and

adopts

the

Magistrate

Judge’s

Report

and

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Recommendation (ECF No. 224). Plaintiff’s motion to alter or amend (ECF No. 212),

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motion for transcripts from the settlement conferences (ECF No. 218), and motion for

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evidentiary hearing (ECF No. 219) are denied.
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The Court also denies Plaintiff’s motion to enforce the settlement agreement (ECF
No. 228).
DATED THIS 27th day of January 2017.

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MIRANDA DU
UNITED STATES DISTRICT JUDGE

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