Olausen v. Murguia et al

Filing 81

ORDER adopting and accepting 45 Report and Recommendation; denying Plaintiff's 16 Motion for TRO; denying Plaintiff's 17 Motion for Preliminary Injunction. Signed by Judge Miranda M. Du on 9/15/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN S. OLAUSEN,

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Case No. 3:13-cv-00388-MMD-VPC
Plaintiff,

ORDER

v.
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SGT. MURGUIA, et al.,
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Defendants.
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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Valerie P. Cooke (dkt. no. 45) (“Recommendation”) relating to Plaintiff’s motions

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for temporary restraining order and preliminary injunction (dkt. nos. 16 & 17)

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(collectively referred to as “Plaintiff’s Motions”). The Magistrate Judge recommended

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denying Plaintiff’s Motions. Plaintiff has filed an objection and Defendants have filed a

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response (dkt. nos. 50 & 51).

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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.” 28 U.S.C. § 636(b)(1). Where a party timely

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

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

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

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the court is not required to conduct “any review at all . . . of any issue that is not the

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subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth

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Circuit has recognized that a district court is not required to review a magistrate judge’s

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report and recommendation where no objections have been filed. See United States v.

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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); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

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

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

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objection.”). In light of Plaintiff’s objection, this Court conducts a de novo review to

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determine whether to adopt Magistrate Judge Cooke’s Recommendation.

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The following two claims in Plaintiff’s complaint survive screening pursuant to 28

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U.S.C. § 1915A: defendants violated Plaintiff’s Fourteenth Amendment due process

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rights when they confiscated his television from another inmate’s cell and his First

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Amendment rights when they retaliated against Plaintiff for grieving the issue by

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destroying the television. (Dkt. no. 3 at 4-5.) Plaintiff’s Motions are premised on

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disciplinary action issued for unauthorized contact arising from his family’s visitation.

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(Dkt. nos. 16 & 17.) Plaintiff argues that the disciplinary action was taken in retaliation

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for his filing of this lawsuit. Plaintiff seeks an order to lift the disciplinary sanctions and

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expunge the disciplinary incident from his record. The Magistrate Judge found that the

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disciplinary action raised in Plaintiff’s Motion is unrelated to the claims and issues

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remaining in this action and recommended denying Plaintiff’s Motions. (Dkt. no. 45 at

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4.)

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The Court agrees with the Magistrate Judge’s Recommendation. The issues

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Plaintiff raised in Plaintiff’s Motions and objection are unrelated to the claims remaining.

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While Plaintiff’s objection raises the claim that Defendant Murguia still has not replaced

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his television, such allegation is unrelated to the injunctive relief sought in Plaintiff’s

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Motions. As to Plaintiff’s claim that the disciplinary action was taken in retaliation,

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Plaintiff must challenge such action through NDOC’s grievance process before pursuing

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legal action.

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It is therefore ordered, adjudged and decreed that the Report and

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Recommendation of Magistrate Judge Valerie P. Cooke (dkt. no. 45) be accepted and
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adopted in its entirety. Plaintiff’s motions for temporary restraining order and preliminary

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injunction (dkt. nos. 16 & 17) are denied.

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DATED THIS 15th day of September 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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