Reed v. Nevada Dept of Corrections et al

Filing 94

ORDER adopting and accepting in its entirety 88 Report and Recommendation; denying 45 Motion to Dismiss; denying 46 Motion for Summary Judgment. Signed by Judge Miranda M. Du on 8/27/2015. (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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MAX REED II,

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

ORDER

v.
NEVADA DEPARTMENT OF
CORRECTIONS, et al.,
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. 88) (“R&R”) relating to Defendants’ motion to dismiss

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and motion for summary judgment (dkt. nos. 45, 46.) The Magistrate Judge

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recommended that Defendants’ motions be denied. Defendants have filed an objection

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to seek clarification from this Court. (Dkt no. 92.)

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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

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

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issue 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.

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

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

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recommendation to which no objections were made); see also Schmidt v. Johnstone,

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263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in

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Reyna-Tapia as adopting the view that district courts are not required to review “any

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issue that is not the subject of an objection.”).

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Defendants do not object to the Magistrate Judge’s R&R. (Dkt. no. 92.) They file

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their objection to ask whether this Court agrees to permit subsequent motion practice.

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First and foremost, while Defendants do not specifically object to the Magistrate Judge’s

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decision, this Court finds it appropriate to nevertheless conduct a de novo review of the

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Magistrate Judge’s R&R. After reviewing the records in this case, the Court agrees with

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the Magistrate Judge’s recommendations. Defendants filed their motions seeking

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dismissal under Rules 12(b)(1), 12(b)(6) and 56 of the Federal Rules of Civil Procedure

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before filing their answer. The Magistrate Judge specifically recommended denying

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Defendants’ motions without prejudice and that Defendants be permitted the opportunity

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to subsequently raise two of the arguments advanced in their motions relating to the

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statute of limitations and supervisory liability. As to Defendants’ arguments relating to

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Plaintiff’s First Amendment claim involving the adequacy of Ely State Prison’s (“ESP”)

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law library, the Magistrate Judge observed that this claim involves a fact-intensive

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inquiry and recommended denying summary judgment, finding that factual disputes

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preclude summary judgment. While the Magistrate Judge did not specifically

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recommend that Defendants be given the opportunity to subsequently raise their

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arguments with respect to Plaintiff’s Count II First Amendment claim involving access to

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the ESP law library, the Court notes that Defendants would not be foreclosed from later

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seeking summary judgment if discovery resolves the factual disputes in their favor.

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

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Recommendation of Magistrate Valerie P. Cooke (dkt. no. 88) is accepted and adopted

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in its entirety. Defendants’ motion to dismiss and motion for summary judgment (dkt.

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nos. 45, 46) are denied.

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DATED THIS 27th day of August 2015.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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