Watkins v. Hughes et al

Filing 46

ORDER - The Report and Recommendation (ECF No. 42 ) is accepted and adopted in full. Defendant's motion for summary judgment (ECF No. 22 ) is granted. The Clerk shall enter judgment in accordance with this Order and close this case. Signed by Judge Miranda M. Du on 2/22/2017. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 JONATHAN WATKINS, Plaintiff, 9 10 Case No. 3:15-cv-00186-MMD-VPC v. NATHAN HUGHES, et al., 11 ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE Defendants. 12 13 I. SUMMARY 14 Before the Court is the Report and Recommendation (“R&R”) of United States 15 Magistrate Judge Valerie P. Cooke (ECF No. 42) relating to Defendant Isidro Baca’s1 16 motion for summary judgment (“Motion”) (ECF No. 22.) Plaintiff filed a response (ECF 17 Nos. 27, 31) and Defendant filed a reply (ECF No. 30). Plaintiff filed an Objection to the 18 R&R (ECF No. 44) and Defendant filed a response to Plaintiff’s Objection (ECF No. 45). 19 After careful review and for the reasons discussed below, the Court adopts the R&R in 20 full. 21 II. BACKGROUND 22 Plaintiff is an inmate currently housed at Northern Nevada Correctional Center 23 (“NNCC”). The Court ultimately permitted Plaintiff to proceed with Count I for violation of 24 his First Amendment rights with respect to outgoing mail. (ECF No. 6.) Plaintiff alleges 25 that Defendant violated his First Amendment rights by removing his outgoing legal mail 26 from the mailroom to the law library for logging and/or reading. (ECF No. 4 at 4.) As a 27 28 Court granted Plaintiff’s motion for leave to voluntarily dismiss Defendants Nathan Hughes and Sheryl Foster. (ECF No. 29.) 1The 1 result of this action, Plaintiff claims that Defendant’s interference with his outgoing legal 2 mail caused a state court to dismiss plaintiff’s timely opposition because it was filed one 3 day late. (Id. at 5.) The relevant background, which the Court adopts, is set out in the 4 R&R. (See ECF No. 42 at 1-2.) 5 III. LEGAL STANDARD 6 This Court “may accept, reject, or modify, in whole or in part, the findings or 7 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 8 timely objects to the magistrate judge’s report and recommendation, then the court is 9 required to “make a de novo determination of those portions of the [report and 10 recommendation] to which objection is made.” Id. In light of Plaintiff’s objections, the 11 Court has engaged in a de novo review to determine whether to adopt Magistrate Judge 12 Cooke’s recommendations. Where a party fails to object, however, the court is not 13 required to conduct “any review at all . . . of any issue that is not the subject of an 14 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has 15 recognized that a district court is not required to review a magistrate judge’s report and 16 recommendation where no objections have been filed. See United States v. Reyna- 17 Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by 18 the district court when reviewing a report and recommendation to which no objections 19 were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) 20 (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that district 21 courts are not required to review any issue that is not the subject of an objection). Thus, 22 if there is no objection to a magistrate judge’s recommendation, then the court may 23 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 24 1226 (accepting, without review, a magistrate judge’s recommendation to which no 25 objection was filed). 26 IV. DISCUSSION 27 While prisoners have a constitutional right to send and receive mail, prison 28 administrators are given discretion to govern the order and security of the prison. (See 2 1 ECF No. 42 at 5 (citing Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam) 2 and Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989)).) Prison officials are not 3 allowed to review a prisoner’s legal documents before sending them to court, but prison 4 officials may identify mail from a prisoner’s attorney and open such mail in front of the 5 prisoner for visual inspection. (See ECF No. 5 (citing Ex Parte Hull, 312 U.S. 546, 549 6 (1941) and Wolff v. McDonnell, 418 U.S. 539, 576-77 (1974)).) 7 Plaintiff alleges that Nevada Department of Corrections’ (“NDOC”) officials have 8 read and/or interfered with his outgoing legal mail in violation of his First Amendment 9 rights. (ECF No. 4 at 4-6.) However, Plaintiff presented no evidence in response to 10 Defendant’s Motion or in his Objection to the R&R to demonstrate even a possibility that 11 NDOC officials read or interfered with his outgoing legal mail. Based on the evidence 12 available to the Court and as found by the Magistrate Judge in the R&R, prison 13 administrators appear to log legal mail before it is sent out (and not read it). (See ECF 14 No. 42 at 5.) Moreover, in Defendant’s reply in support of his Motion, Defendant points 15 out that Plaintiff placed his outgoing legal mail for pickup on a Friday (no time is 16 indicated in the record). (ECF No. 30 at 4.) NDOC Administrative Regulation (“AR”) 722 17 states that mail can be held for up to twenty-four hours for processing before arriving at 18 the post office (see ECF No. 22 at 6), and AR 750 states that mail pickup and delivery 19 does not occur on weekends or holidays (see AR 750). Thus, it is plausible that Plaintiff’s 20 legal document was not picked up by NDOC staff for logging until Monday morning at 21 10:30am, after which it was returned to the mail room at 3:30pm and sent out to the post 22 office the subsequent day by 8:00 am. 23 Plaintiff also appears to rely on a Ninth Circuit case, Douglas v. Noelle, 567 F.3d 24 1102 (9th Cir. 2009), to assert that service is complete the “instant the documents are 25 placed into the hands of the United States Post Office or Post Office Box.” (ECF No. 44 26 at 5.) While this may be true when documents are filed a day late in federal court, it does 27 not apply to the same situation in state court, where specific procedural rules of the state 28 govern determination of service. Moreover, this Court dismissed Plaintiff’s access to the 3 1 courts claim in the Screening Order. (See ECF No. 6.) Thus, Plaintiff’s reliance on 2 Douglas is misplaced. The Court therefore accepts the reasoning of the Magistrate Judge and adopts 3 4 the R&R. 5 V. 6 CONCLUSION It is therefore ordered, adjudged and decreed that the Report and 7 Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 42) is accepted and 8 adopted in full. 9 10 11 12 13 It is ordered that Defendant’s motion for summary judgment (ECF No. 22) is granted. The Clerk is directed to enter judgment in accordance with this Order and close this case. DATED THIS 22nd day of February 2017. 14 15 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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