Conners v. Howard et al

Filing 35

ORDER that ECF No. 32 Report and Recommendation is accepted and adopted in full; ECF No. 24 Defendants' Motion for Summary Judgment is granted; Plaintiff's claims are dismissed without prejudice; Clerk directed to enter judgment and close case. Signed by Judge Miranda M. Du on 2/20/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA *** 10 11 DARRELL CONNERS, Plaintiff, 12 13 Case No. 3:16-cv-00178-MMD-VPC v. B. HOWARD, et al., 14 ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE Defendants. 15 16 I. SUMMARY 17 Before the Court is the Report and Recommendation (“R&R”) of United States 18 Magistrate Judge Valerie P. Cooke (ECF No. 32) relating to Defendants’ Motion for 19 Summary Judgment (ECF No. 24). Plaintiff filed an objection to the R&R (ECF No. 33), 20 and Defendants filed a response thereto (ECF No. 34). For the reasons discussed 21 below, the Court accepts and adopts the R&R in full. 22 II. BACKGROUND 23 Plaintiff, proceeding pro se, is an inmate in the custody of the Nevada Department 24 of Corrections (“NDOC”). The events giving rise to this action occurred while Plaintiff was 25 housed at Ely State Prison (“ESP”). The Court permitted Plaintiff to proceed on Plaintiff’s 26 access to the courts claim against Defendant B. Howard and against John Doe mail 27 room correctional officers # 1 and # 2 when he learns their identity. (ECF No. 6 at 4-5; 28 ECF No. 8 at 1.) The Court subsequently permitted Plaintiff to file an amended complaint 1 to cure the deficiencies of the counts previously dismissed with leave to amend. 1 (ECF 2 No. 22.) Further background regarding Plaintiff and this action is included in the R&R 3 (see ECF No. 32 at 1-2), which this Court adopts. 4 III. LEGAL STANDARD Review of the Magistrate Judge’s Recommendations 5 A. 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 a 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.” 28 U.S.C. § 636(b)(1). Where a party fails 11 to object, however, the court is not required to conduct “any review at all . . . of any issue 12 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 13 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 14 magistrate judge’s report and recommendation where no objections have been filed. See 15 United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 16 of review employed by the district court when reviewing a report and recommendation to 17 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 18 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 19 view that district courts are not required to review “any issue that is not the subject of an 20 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 21 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 22 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 23 which no objection was filed). 24 In light of Plaintiff’s objection to the Magistrate Judge’s R&Rs, this Court finds it 25 appropriate to engage in a de novo review to determine whether to adopt Magistrate 26 /// 27 28 1The Clerk’s Office had opened a new case because Plaintiff failed to include the case no. with his amended complaint. (ECF No. 20.) 2 1 Judge Cooke’s R&R. Upon reviewing the R&R and records in this case, this Court finds 2 good cause to adopt the Magistrate Judge’s R&R in full. 3 B. Summary Judgment Standard 4 “The purpose of summary judgment is to avoid unnecessary trials when there is 5 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 6 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 7 pleadings, the discovery and disclosure materials on file, and any affidavits “show there 8 is no genuine issue as to any material fact and that the movant is entitled to judgment as 9 a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is 10 “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could 11 find for the nonmoving party and a dispute is “material” if it could affect the outcome of 12 the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 13 (1986). Where reasonable minds could differ on the material facts at issue, however, 14 summary judgment is not appropriate. See id. at 250-51. “The amount of evidence 15 necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to 16 resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 17 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 18 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts 19 and draws all inferences in the light most favorable to the nonmoving party. Kaiser 20 Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 21 The moving party bears the burden of showing that there are no genuine issues 22 of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once 23 the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting 24 the motion to “set forth specific facts showing that there is a genuine issue for trial.” 25 Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the 26 pleadings but must produce specific evidence, through affidavits or admissible discovery 27 material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 28 1409 (9th Cir. 1991), and “must do more than simply show that there is some 3 1 metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th 2 Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 3 (1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s position 4 will be insufficient.” Anderson, 477 U.S. at 252. 5 IV. DISCUSSION 6 The Prison Litigation Reform Act (“PLRA”) requires that Plaintiff first exhaust his 7 administrative remedies through the NDOC grievance process. See 42 U.S.C. § 8 1997e(a); see also Porter v. Nussle, 534 U.S. 516, 524 (2002). Thus, in order to have 9 exhausted NDOC’s administrative remedies, Plaintiff needed to “use all steps the prison 10 holds out”—specifically, those identified in Administrative Regulation (“AR”) 740—so that 11 NDOC officials could actually reach, or at the very least attempt to reach, the merits of 12 his issues. See Griffin v. Arpaio, 557 F.3d 1117, 1119 (9th Cir. 2009). 13 The Magistrate Judge recommends granting summary judgment in favor of 14 Defendants because Plaintiff failed to exhaust his administrative remedies prior to 15 initiating this action. (ECF No. 32 at 6-9.) In particulate, the Magistrate Judge found that 16 Plaintiff undisputedly filed the initial complaint about five months before he received a 17 response to his second level grievance. (Id. at 6-7.) The Magistrate Judge further found 18 that Plaintiff’s proffered reasons for why he did not exhaust his administrative remedies 19 fail to satisfy Plaintiff’s burden of demonstrating that “available administrative remedies 20 were effectively unavailable to him.” (Id. at 7-8, citing Albino v. Baca, 747 F.3d 1162, 21 1172 (9th Cir. 2014.) The Court agrees with the Magistrate Judge. 22 Plaintiff raises three arguments in his objection. (ECF No. 33.) First, he did not 23 have access to the courts to know he was required to exhaust his administrative 24 remedies. (Id. at 1.) The Magistrate Judge correctly found that this excuse does not fall 25 within the “’special circumstances’ exception” that the Supreme Court established in 26 Ross v. Blake, 136 S.Ct. 1850 (2016). Second, Plaintiff argues that a genuine issue of 27 material fact exists as to the eight-month period that Defendants contend Plaintiff was 28 able to order case laws and other resources and the extent to which Plaintiff was able to 4 1 do so. (ECF No. 33 at 2.) However, such a disputed fact is not relevant to whether 2 Plaintiff exhausted his administrative remedies. Even if Plaintiff did not have access to 3 legal resources, such lack of access does not render the NDOC’s administrative process 4 effectively unavailable to him. Finally, Plaintiff suggests that because Defendants 5 concede that dismissal of his claims should be without prejudice, the Court should permit 6 him to amend his complaint to assert his access to court claim since he has now 7 exhausted his administrative remedies. (Id.) However, granting leave to amend would 8 render the PLRA’s administrative exhaustion requirement meaningless. 9 V. 10 CONCLUSION It is therefore ordered, adjudged and decreed that the Report and 11 Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 32) is accepted and 12 adopted in full. 13 14 15 16 17 It is further ordered that Defendants’ Motion for Summary Judgment (ECF No. 24) is granted. Plaintiff’s claims are dismissed without prejudice. The Clerk is directed to enter judgment in accordance with this Order and close this case. DATED THIS 20th day of February 2018. 18 19 20 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28 5

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