Reed v. Nevada Dept of Corrections et al

Filing 208

ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE CARLA B. CARRY ECF No. 201 Report and Recommendation; Defendants' motion for summary judgment ECF No. 183 is granted; Clerk directed to enter judgment and close this case. Signed by Judge Miranda M. Du on 3/4/2019. (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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MAX REED II,

Case No. 3:14-cv-00313-MMD-CBC
Plaintiff,

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v.
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NEVADA DEPT. OF CORRECTIONS, et
al.,

ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
CARLA B. CARRY

Defendants.

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I.

SUMMARY

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This is a civil rights action filed by Plaintiff Max Reed II, who is in the custody of

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the Nevada Department of Corrections (“NDOC”). Before the Court is the Report and

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Recommendation (“R&R” or “Recommendation”) of United States Magistrate Judge

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Carla B. Carry (ECF No. 201) relating to Defendants Renee Baker, Harold Byrne,

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James Cox, Leslie Healer, Agnes Horn, Felix Kreskey, Grant Luce, Jack Palmer, Rex

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Reed, Melissa Travis, Lisa Walsh, Adam Watson, Kenneth Webb, and Jonathan

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Wilson’s motion for summary judgment (“Motion”) (ECF Nos. 183, 185 (errata)). Plaintiff

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objected to the R&R (ECF No. 204), and Defendants responded (ECF No. 207). The

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Court has reviewed these filings as well as the response and reply related to the Motion.

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(ECF Nos. 191, 195, 196 (corrected filing).) For the following reasons, the Court

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overrules Plaintiff’s objection and adopts Judge Carry’s Recommendation.

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II.

BACKGROUND

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Plaintiff is an inmate in the custody of the NDOC. The events giving rise to this

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action took place while Plaintiff was held at Ely State Prison (“ESP”) and the Northern

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Nevada Correctional Center (“NNCC”). (ECF No. 31 at 3.) The Court adopts the

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discussion of the background and claims in the R&R. (ECF No. 201 at 2-4.)

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III.

LEGAL STANDARD
Review of the Magistrate Judge’s Recommendations

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A.

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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.” Id. Where a party fails to object,

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

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

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Ninth Circuit has recognized that a district court is not required to review a magistrate

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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

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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

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

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

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

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

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recommendation to which no objection was filed).

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In light of Plaintiff’s objection to the Magistrate Judge’s R&R, this Court finds it

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appropriate to engage in a de novo review to determine whether to adopt Magistrate

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Judge Carry’s R&R. Upon reviewing the R&R and records in this case, this Court finds

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good cause to adopt the Magistrate Judge’s R&R in full.

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B.

Summary Judgment Standard

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“The purpose of summary judgment is to avoid unnecessary trials when there is

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no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,

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18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the
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pleadings, the discovery and disclosure materials on file, and any affidavits “show there

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is no genuine issue as to any material fact and that the movant is entitled to judgment

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as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is

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“genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder

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could find for the nonmoving party and a dispute is “material” if it could affect the

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outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue,

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however, summary judgment is not appropriate. See id. at 250-51. “The amount of

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evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury

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or judge to resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v.

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Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Serv.

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Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court

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views all facts and draws all inferences in the light most favorable to the nonmoving

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party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir.

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1986).

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The moving party bears the burden of showing that there are no genuine issues

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of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once

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the moving party satisfies Rule 56’s requirements, the burden shifts to the party

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resisting the motion to “set forth specific facts showing that there is a genuine issue for

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trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the

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pleadings but must produce specific evidence, through affidavits or admissible

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discovery material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d

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1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some

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metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th

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Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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586 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s

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position will be insufficient.” Anderson, 477 U.S. at 252.

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IV.

PLAINTIFF’S OBJECTION (ECF NO. 204)

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A.

Count I and II

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In Counts I and II, Plaintiff asserts various claims alleging denial of access to the

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courts in different ways. (See ECF No. 31 at 10-19.) Judge Carry recommended

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granting summary judgment in favor of Defendants on these claims (as well as Counts

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III and VI) because Plaintiff did not adduce evidence that he suffered actual injury as

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required under Lewis v. Casey, 518 U.S. 343 (1996), such as missing a filing deadline

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or having a valid claim dismissed. (ECF No. 201 at 10.)

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Plaintiff objects, arguing that he was injured (1) when he was unable to present

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an actual innocence claim on direct appeal or in his post-conviction habeas petition; (2)

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when he was unable to oppose Defendants’ motion for summary judgment; and (3)

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when a civil case Plaintiff brought under 42 U.S.C. § 1983 was dismissed because

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Plaintiff missed a filing deadline. (ECF No. 204 at 3-5.)

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Defendants argue that Plaintiff did not suffer any actual injury and that it was his

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own fault if he did—he refused to accept boxes of legal materials that were transferred

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to him from High Desert State Prison (“HDSP”). (ECF No. 207 at 3.) Defendants further

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argue that Plaintiff’s § 1983 case was dismissed for failure to comply with LR 15-1(a)

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(requiring the moving party to attach the proposed amended pleading to a motion

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seeking leave of the court to file an amended pleading), and that Plaintiff did not show

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how his inability to review discovery evidence caused him to miss the deadline to file an

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amended complaint. (Id.)

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The Court agrees with the Magistrate Judge’s R&R. First, Plaintiff has not shown

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that “any alleged violation of his access to the courts impacted the outcomes of his

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criminal appeals.” (ECF No. 201 at 10.) Both his appeals were reviewed by the Nevada

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Supreme Court and affirmed based on review of the totality of the evidence presented

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at trial. (Id. at 11; see also ECF No. 183-14 at 6-8; ECF No. 183-16 at 2-3.) Plaintiff did

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not lose because he failed to support his arguments on appeal with evidence. Rather,

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all the evidence presented at trial allowed a reasonable trier of fact to conclude that

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Plaintiff was guilty. (ECF No. 183-14 at 6; ECF No. 183-16 at 3.)

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Second, Plaintiff has not shown that his habeas petition has been affected—he

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“fails to allege any specific filing or evidence he was unable to present during his post-

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conviction habeas petition.” (ECF No. 201 at 12.) While Plaintiff generally argues that he

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was unable to present a particular claim—actual innocence—because he did not have

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access to CD-ROMs with witness testimony that there was no plan to murder anyone,

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the record shows that Plaintiff was able to litigate his case by filing numerous motions

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and briefs. (See id. at 12; ECF No. 183-17 (post-conviction habeas docket).) Moreover,

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Plaintiff did not rebut Defendants’ assertion that Plaintiff was provided an opportunity to

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review the disks and refused. (See ECF No. 183 at 2-3; ECF No. 191 at 22-24 (only

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asserting that Plaintiff would have been required to contact his counsel to review the

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disks—not that Plaintiff was unable to do so).)

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Third, Plaintiff has not shown that he was unable to oppose Defendants’ motion

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for summary judgment in this case. His assertion in this regard is conclusory. (See ECF

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No. 204 at 4 (“Without access to my trial transcripts I could not identify any specific

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grounds that I am being prevented from presenting in my post-conviction and in my

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opposition to defendants motion for summary judgment.”).)

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Finally, Plaintiff’s § 1983 case was dismissed after multiple opportunities to

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amend, and Plaintiff does not specifically identify how he was prevented from litigating

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his case based on his inability to review trial and discovery materials. (See ECF No. 204

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at 5; ECF No. 191 at 18-19.)

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Accordingly, the Court overrules Plaintiff’s objection to the Magistrate Judge’s

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Recommendation as to Counts I and II. The Court also overrules Plaintiff’s objection to

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the extent that it is directed to the Magistrate Judge’s Recommendation as to Counts III

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and VI—both for these reasons and the reasons discussed infra Section IV(B).

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B.

Counts III and VI

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Plaintiff argues that the Magistrate Judge applied the wrong legal standard to

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Plaintiff’s claims in Counts III and VI. (ECF No. 204 at 6.) Plaintiff argues that the legal

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standard for claims related to denial of access to the courts prescribed in Lewis, 518

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U.S. 343, is inapplicable to Counts III and VI because the claims involve Plaintiff’s Sixth

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Amendment right to self-representation. (Id.)

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Defendants argue that the legal standard prescribed in Lewis applies because

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Plaintiff’s claims constitute de facto denial of access to the courts claims. (See ECF No.

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207 at 4.)

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The Court agrees with Defendants. The claims in Counts III and VI are the same

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as the claims in Counts I and II but for their labeling. In each of these claims, Plaintiff

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asserts that he was deprived of materials he needed for litigation and as a result was

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denied access to the courts (Counts I and II) or denied the opportunity to represent

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himself (Counts III and VI). (See ECF No. 31 at 10-13 (Count I), 14-19 (Count II), 21-22

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(Count III), 25-30 (Count VI).)

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Accordingly, the Court overrules Plaintiff’s objection to the Magistrate Judge’s
Recommendation as to Counts III and VI.

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C.

Count IV

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In Count IV, Plaintiff alleges that his procedural due process rights were violated

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when ESP staff deducted funds from his inmate trust account on two occasions without

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authorization. (Id. at 23.) The Magistrate Judge recommended granting summary

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judgment in favor of Defendants on Count IV because an unauthorized deprivation of

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property by a prison official is not actionable in light of the meaningful post-deprivation

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remedy Nevada offers. (ECF No. 201 at 14.)

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Plaintiff argues that the deduction was authorized by Administrative Regulation

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(“AR”) 258.08. (ECF No. 204 at 7.) But Plaintiff’s assertion directly contradicts the

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finding of the Seventh Judicial District Court in Case No. CV-1405060 that one of the

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deductions was unauthorized. (ECF No. 201 at 15 (citing ECF No. 191 at 95).) As to the
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deduction that was allegedly authorized, Plaintiff has not presented any legal argument

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to support his allegation that he was deprived of due process. (ECF No. 204 at 7; ECF

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No. 191 at 19-20.)
Accordingly, the Court overrules Plaintiff’s objection to the Magistrate Judge’s

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Recommendation as to Count IV.

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D.

Count V

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In Count V, Plaintiff alleges that John Doe destroyed Plaintiff’s personal

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photographs. (ECF No. 31 at 24.) The Magistrate Judge recommended granting

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summary judgment in favor of Defendants on Count V because Plaintiff has been

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unable to determine the identify of John Doe in the two years since this case was filed.

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(ECF No. 201 at 15.)

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Plaintiff objects, arguing that he was prevented from identifying John Doe when

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HDSP staff destroyed his civil case discovery and work product. (ECF No. 204 at 7.) But

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Plaintiff has not specifically identified the materials that would have enabled him to

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identify John Doe. (Id. at 7; ECF No. 191 at 20-21.)
Accordingly, the Court overrules Plaintiff’s objection to the Magistrate Judge’s

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Recommendation as to Count V.

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V.

CONCLUSION
It is therefore

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ordered, adjudged and decreed

that the Report and

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Recommendation of Magistrate Judge Carla B. Carry (ECF No. 201) is accepted and

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adopted in full.
It is further ordered that Defendants’ motion for summary judgment (ECF No.

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183) is granted.
It is further ordered that the Clerk of the Court enter judgment and close this

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case.
DATED THIS 4th day of March 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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