Gubbine v. Pope et al

Filing 29

ORDERED, adjudged and decreed that the Report and Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 26 ) is accepted and adopted in full. It is further ordered that Defendants' Motion for Summary Judgment (ECF No. 20 ) is granted. It is further ordered that the Clerk enter judgment and close this case. Signed by Judge Miranda M. Du on 3/6/2018. (Copies have been distributed pursuant to the NEF - DRM)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 SONNY JAMES GUBBINE, Case No. 3:16-cv-00488-MMD-VPC 11 Plaintiff, 12 ORDER v. 13 CHARLIE POPE, et al., 14 Defendants. 15 16 I. SUMMARY 17 Before the Court is the Report and Recommendation (“Recommendation” or 18 “R&R”) of Magistrate Judge Valerie P. Cooke, recommending that the Court grant 19 Defendants’ Motion for Summary Judgment (“Motion”) (ECF No. 20). (ECF No. 26.) 20 Plaintiff filed an objection (ECF No. 27); Defendants responded to Plaintiff’s objection 21 (ECF No. 28). For the reasons discussed below, the Court adopts the R&R. 22 II. RELEVANT BACKGROUND 23 Following screening pursuant to 28 U.S.C. § 1915A, the Court permitted Plaintiff 24 to proceed on two counts—Counts III and IV1—for Due Process Clause violations and for 25 conspiracy. (ECF No. 7 at 7-8; ECF No. 8 at 12-17.) The background facts relating to 26 Plaintiff’s claims are recounted in the R&R which this Court adopts. (ECF No. 26 at 1-2.) 27 28 1The 2.) R&R incorrectly refers to these two counts as Counts I and II. (ECF No. 26 at 1 III. LEGAL STANDARDS Review of Magistrate Judge’s Recommendation 2 A. 3 This Court “may accept, reject, or modify, in whole or in part, the findings or 4 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 5 timely objects to a magistrate judge’s report and recommendation, then the court is 6 required to “make a de novo determination of those portions of the [report and 7 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 8 to object, however, the court is not required to conduct “any review at all . . . of any issue 9 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, 10 the Ninth Circuit has recognized that a district court is not required to review a magistrate 11 judge’s report and recommendation where no objections have been filed. See United 12 States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 13 employed by the district court when reviewing a report and recommendation to which no 14 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 15 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 16 district courts are not required to review “any issue that is not the subject of an objection.”). 17 Thus, if there is no objection to a magistrate judge’s recommendation, then the court may 18 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 19 1226 (accepting, without review, a magistrate judge’s recommendation to which no 20 objection was filed). 21 22 Plaintiff objects in part to the R&R.2 The will therefore conduct a de novo review to determine whether to adopt the parts of the R&R to which Plaintiff objects. 23 B. 24 “The purpose of summary judgment is to avoid unnecessary trials when there is 25 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 26 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 27 28 Summary Judgment Standard 2For example, Plaintiff’s objection incorporates some portions of the R&R. (ECF No. 27 at 2-3.) 2 1 pleadings, the discovery and disclosure materials on file, and any affidavits “show there 2 is no genuine issue as to any material fact and that the movant is entitled to judgment as 3 a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” 4 if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the 5 nonmoving party, and a dispute is “material” if it could affect the outcome of the suit under 6 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where 7 reasonable minds could differ on the material facts at issue, however, summary judgment 8 is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a 9 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ 10 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th 11 Cir. 1983) (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). In 12 evaluating a summary judgment motion, a court views all facts and draws all inferences 13 in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & 14 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 15 The moving party bears the burden of showing that there are no genuine issues of 16 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the 17 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the 18 motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 19 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must 20 produce specific evidence, through affidavits or admissible discovery material, to show 21 that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), 22 and “must do more than simply show that there is some metaphysical doubt as to the 23 material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita 24 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence 25 of a scintilla of evidence in support of the plaintiff’s position will be insufficient.” Anderson, 26 477 U.S. at 252. 27 /// 28 /// 3 1 IV. DISCUSSION 2 The Magistrate Judge found that Plaintiff’s claimed loss of “multiple privileges” as 3 a result of the reduction in his classification from level one to level two in NDOC’s level 4 system does not amount to a liberty interest to support Plaintiff’s Due Process Clause 5 claim. (ECF No. 26 at 7-8; ECF No. 8 at 7.) Plaintiff argues that he has a liberty interest 6 in the NDOC complying with prison regulations and he did suffer a loss of privileges given 7 the comfort of his prior life before the level reduction.3 (ECF No. 27 at 7-8.) The Court 8 agrees with the Magistrate Judge. 9 As the Magistrate Judge correctly found, Plaintiff fails to offer any evidence, let 10 alone states with any details, of the “multiple privileges” that he forfeited as a result of the 11 one level reduction. (ECF No. 26 at 6.) Plaintiff’s objection asserts that “Plaintiff’s prior life 12 was about as comfortable as possible in prison.” (ECF No. 27 at 8.) However, such 13 general assertion does not identify what privileges were lost that amount to a deprivation 14 of a liberty interest. The Court agrees with the Magistrate Judge that even considering 15 the privileges that Defendants have identified—partial restriction in access to the yard, 16 the chapel and educational opportunities, hobby and craft privileges, and lost access to 17 the gym and the ability to securing a paying job (ECF No. 20 at 11)—they do not amount 18 to a “major disruption in his environment” to satisfy the second prong of the three factors 19 test under Sandin v. Conner, 515 U.S. 472, 486-87 (1995). 20 The Magistrate Judge found that Plaintiff cannot satisfy an essential element of his 21 conspiracy claim—that the alleged conspiracy deprived him of his constitutional rights. 22 (ECF No. 26 at 8.) Plaintiff contends that the Magistrate Judge disregarded the essential 23 /// 24 25 26 27 28 3Plaintiff also asserts that he and NDOC had a contract. (ECF No. 27 at 8-9.) A violation of any purported contract may give rise to a claim for breach of that contract, but without more, would not give rise to deprivation of a liberty interest. Plaintiff’s objection also asserts that he has a right to practice his religion under the First Amendment. (Id. at 5.) However, the Court did not permit this claim—that Plaintiff was punished for not taking a kosher meal—to proceed after screening. (ECF No. 7 at 5.) In particular, the Court found that “Plaintiff was not attempting to practice his religion when Pope wrote him up for foregoing his religious CFM for a mainline dinner.” (Id.) 4 1 elements of his conspiracy claim and his contention of his contract with NDOC. Again, 2 the Court agrees with the Magistrate Judge. 3 The plaintiff must show “an agreement or meeting of the minds to violate 4 constitutional rights,” and “[t]o be liable, each participant in the conspiracy need not know 5 the exact details of the plan, but each participant must at least share the common 6 objective of the conspiracy.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 440 (9th Cir. 7 2010). 8 Plaintiff’s conspiracy claim alleges that charging Plaintiff for foregoing his religious 9 CFM violated his constitutional rights. (ECF No. 23 at 2.) However, because the Court 10 has determined that such action did not violate Plaintiff’s First Amendment rights, the 11 Magistrate Judge correctly concluded that Plaintiff cannot show that Defendants’ conduct 12 deprived Plaintiff of his constitutional rights. (ECF No. 26 at 8, citing Addisu v. Fred Meyer, 13 Inc., 198 F.3d 1130, 1141 (9th Cir. 2000).) 14 As for Plaintiff’s contention that he had a contract with NDOC, such a contractual 15 obligation does not give rise to a constitutional right to support Plaintiff’s conspiracy claim. 16 V. CONCLUSION 17 It is therefore ordered, adjudged and decreed that the Report and 18 Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 26) is accepted and 19 adopted in full. 20 21 22 It is further ordered that Defendants’ Motion for Summary Judgment (ECF No. 20) is granted. It is further ordered that the Clerk enter judgment and close this case. 23 DATED THIS 6th day of March 2018. 24 25 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 26 27 28 5

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