Warren v. Nev. Dept. of Corr. et al

Filing 48

ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb (ECF No. 46 ) is accepted and adopted in its entirety; Plaintiff's motion for leave to file the Second Amended Complaint (ECF No. 32 ) is granted; Cler k directed to file the SAC (ECF No. 32 -1) and send Plaintiff a courtesy copy (Attached hereto for distribution to P); some claims permitted to proceed; Clerk directed to electronically serve a copy of this order and ECF No. 32 -1 Plaintiff& #039;s SAC on AG (E-service on 12/2/2019); AG to advise Court within (21) days of the date of entry of this order re acceptance of service and/or provide last-known-address information under seal; plaintiff to file a motion identifying the uns erved defendant(s), requesting issuance of a summons, and specifying a full name and address for the defendant(s); answer/response due within 60 days for any defendants represented. See order for further details. Signed by Chief Judge Miranda M. Du on 12/2/2019. (Attachments: # 1 ECF No. 32-1 Second Amended Complaint)(Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KEITH WARREN.,

Case No. 3:17-cv-00228-MMD-WGC
Plaintiff,

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v.
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C/O POWERS, et al.,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
WILLIAM G. COBB

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Defendants.
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Plaintiff Keith Warren, an incarcerated person, brings this civil rights action

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pursuant to 42 U.S.C. § 1983. Before the Court is a Report and Recommendation of United

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States Magistrate Judge William G. Cobb (“R&R”). (ECF No. 46.) The R&R addresses

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Plaintiff’s motion for leave to file a second amended complaint and the accompanying

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complaint (“SAC”) (ECF Nos. 32, 32-1). (Id.) 1 The parties had until November 26, 2019,

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to file objections to the R&R. No objection has been filed. The Court accepts and adopts

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the R&R in its entirety.

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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). However, the

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Court is not required to conduct “any review at all . . . of any issue that is not the subject

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of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v.

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Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003)

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(reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that district

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courts are not required to review “any issue that is not the subject of an objection” and

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///

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R&R explains the applicable legal and screening standards and recites
Plaintiff’s factual allegations. (See generally ECF No. 46.)

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accepting, without review, a magistrate judge’s recommendation to which no objection

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was filed). The Court nonetheless engages in de novo review to determine whether to

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accept the R&R and finds it should be accepted.

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In the R&R, Judge Cobb concluded that permitting leave to amend is proper under

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Fed. R. Civ. P. 15(a)(2). Upon screening the SAC, Judge Cobb found that Plaintiff’s three

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claims are asserted under the Eighth Amendment for failure to protect—not also under the

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Fourteenth Amendment as Plaintiff alleges (see ECF No. 32-1)—and the First Amendment

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for retaliation. (E.g., ECF No. 46 at 7, 12.) As to each named Defendant (see ECF No. 46

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at 3 (listing all Defendants)) and the respective claims, Judge Cobb found as follows:

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(1) Count III and Northern Nevada Correctional Center (“NNCC”) Caseworker R.

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Mears, NNCC Warden Isidro Baca, Nevada Department of Corrections

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(“NDOC”) Deputy Director D. Tristan, Lovelock Correctional Center (“LCC”)

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Caseworker D. Baze, LCC Warden Renee Baker and Inspector General Pamela

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Del Porto should be dismissed with prejudice for failure to state a claim. (ECF

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No. 46 at 10–11; see ECF No. 32-1 at 14–15.) Dismissal is warranted because

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Plaintiff’s allegations in this count against these Defendants relate to their

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conduct within the grievance process to which Plaintiff has no due process

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rights. See, e.g., Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (citations

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omitted) (“There is no legitimate claim of entitlement to a grievance

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procedure.”); Ramirez v. Galalap, 334 F.3d 850, 560 (9th Cir. 2003) (“[I]nmates

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lack a separate constitutional entitlement to a specific prison grievance

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procedure.”).

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(2) Count I should proceed against Warm Springs Correctional Center (“WSCC”)

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Warden Quinten Byrne, WSCC Lieutenant Ramirez, WSCC Caseworker

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Chandra Thomas, WSCC Correctional Officer Kelly, WSCC Correctional Officer

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Powers, WSCC Gang Investigator/Officer Vidaurri and NDOC Deputy Director

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SL Foster for failure to protect under the Eighth Amendment. (ECF No. 46 at 8–

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9; see ECF No. 32-1 at 6–12.) Judge Cobb also found that in Count I Plaintiff
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states a colorable claim for retaliation under the First Amendment against

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Thomas. (ECF No. 46 at 9.)

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(3) Count II should proceed against Powers, Vidaurri, Kelly and Thomas for

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retaliation under the First Amendment. (Id. at 10; see ECF No. 32-1 at 13.)

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The Court agrees with the R&R and adopts it in full.

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

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of Magistrate Judge William G. Cobb (ECF No. 46) is accepted and adopted in its entirety.

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It is further ordered that Plaintiff’s motion for leave to file the SAC (ECF No. 32) is

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granted.
It is further ordered that the Clerk of the Court file the SAC (ECF No. 32-1) and
send Plaintiff a courtesy copy.
It is further ordered that Count III and defendants Mears, Baca, Tristan, Baze, Baker
and Del Porto are dismissed with prejudice as amendment would be futile.

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It is further ordered that Count I will proceed against Defendants Byrne, Foster,

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Kelly, Powers, Ramirez, Thomas and Vidaurri for failure to protect in violation of the Eighth

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Amendment.

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It is further ordered that Counts I and II will proceed against Thomas based on
Plaintiff’s claims of retaliation by Thomas under the First Amendment.

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It is further ordered that Count II will also proceed against Kelly, Powers and

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Vidaurri based on Plaintiff’s allegations of retaliation by these Defendants under the First

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Amendment.

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It is further ordered that the Clerk of the Court electronically serve a copy of this

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order and a copy of Plaintiff’s SAC (ECF No. 32-1) on the Office of the Attorney General

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of the State of Nevada, by adding the Attorney General to the docket sheet. This does not

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indicate acceptance of service.

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It is further ordered that the Attorney General’s Office must advise the Court within

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21 days of the date of the entry of this order whether it will enter a limited notice of

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appearance on behalf of Defendants for the purpose of settlement. No defenses or
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objections, including lack of service, will be waived as a result of the filing of the limited

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notice of appearance. For those defendants for whom it does not accept service, the

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Attorney General’s Office must file the last known address under seal, but not serve the

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inmate Plaintiff. If the last known address is a post office box, the Attorney General’s Office

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must attempt to obtain and provide the last known physical address.

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It is further ordered that if service cannot be accepted for any of the named

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Defendants, Plaintiff must file a motion identifying the unserved defendant(s), request

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issuance of a summons, and provide the full name and address for those Defendants for

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whom the Attorney General has not provided a last known address under seal.

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It is further ordered that if the Attorney General accepts service for any named

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Defendants, they must file and serve an answer or other response within 60 days from

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when this order is issued.

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DATED THIS 2nd day of December 2019.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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