Friedman v. Dzurenda et al

Filing 40

ORDER that Judge Baldwin's Report and Recommendation (ECF No. 39 ) is accepted and adopted in full; Defendant Ward is dismissed pursuant to Federal Rule of Civil Procedure 4(m); Defendants' motion for summary judgment (ECF No. 27 ) is granted in part and denied in part. Signed by Chief Judge Miranda M. Du on 11/17/2020. (Copies have been distributed pursuant to the NEF - LW)

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Case 3:18-cv-00384-MMD-CLB Document 40 Filed 11/17/20 Page 1 of 3 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 *** 6 KENNETH FRIEDMAN, Case No. 3:18-cv-00384-MMD-CLB 7 8 9 10 Plaintiff, ORDER v. JAMES DZURENDA, et al., Defendants. 11 Pro se Plaintiff Kenneth Friedman brings this action under 42 U.S.C. § 1983. 12 Before the Court is the Report and Recommendation (“R&R” or “Recommendation”) of 13 United States Magistrate Judge Carla L. Baldwin (ECF No. 39), recommending the Court 14 grant Defendants’ Motion for Summary Judgment (“Motion”) as to Defendant Rich Snyder 15 and deny Defendants’ Motion as to all other Defendants. The parties had until November 16 5, 2020 to file an objection. To date, no objection to the R&R has been filed. For this 17 reason, and as explained below, the Court adopts the R&R, and will grant in part and 18 deny in part Defendants’ Motion. 19 The Court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 21 fails to object to a magistrate judge’s recommendation, the Court is not required to 22 conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas 23 v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 24 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and 25 recommendations is required if, but only if, one or both parties file objections to the 26 findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 72, Advisory 27 Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no 28 clear error on the face of the record in order to accept the recommendation.”). Case 3:18-cv-00384-MMD-CLB Document 40 Filed 11/17/20 Page 2 of 3 1 Because there is no objection, the Court need not conduct de novo review, and is 2 satisfied Judge Baldwin did not clearly err. Here, Judge Baldwin recommends first that 3 Defendant Brian Ward be dismissed from this case pursuant to Federal Rule of Civil 4 Procedure 4(m) for failure to file proper proof of service. (ECF No. 39 at 1, fn. 2.) Plaintiff 5 was required to provide proper proof of service by October 2, 2020, per the Court’s notice 6 of intent to dismiss. (ECF No. 34.) 7 Judge Baldwin further recommends that Defendants’ Motion be granted with 8 respect to Defendant Snyder and denied with respect to all remaining Defendants. (ECF 9 No. 39 at 15.) Because Plaintiff’s “alleged facts do not show any [personal] participation 10 by Snyder,” Plaintiff’s § 1983 claim against him is legally insufficient. (Id. at 7.) However, 11 Plaintiff sufficiently alleged personal participation by remaining Defendants James 12 Dzurenda, Isidro Baca, Yisroel Rosskamm, and Lisa Walsh. (Id. at 5-7.) Further, 13 Defendants have failed to show that a jury could not find that Plaintiff’s First Amendment 14 right to freely exercise his religion has been substantially burdened without legitimate 15 penological interests. (Id. at 7-12.) After applying the test in Turner v. Safley, 482 U.S. 78, 16 89 (1987), Judge Baldwin found that summary judgment would not be proper for Plaintiff’s 17 First Amendment claim. (Id. at 12.) Further, because Defendants have failed to meet the 18 RLUIPA standard that NDOC prove its Common Fare Menu is the “least restrictive means 19 of furthering a compelling governmental interest,” Judge Baldwin found a “triable issue of 20 material fact” for Plaintiff’s RLUIPA claim. (Id. at 13.) Finally, Judge Baldwin determined 21 that Plaintiff’s allegations are enough to establish a violation of a clearly established 22 constitutional right, so qualified immunity is not available. (Id. at 15.) The Court agrees 23 with Judge Baldwin. Having reviewed the R&R and the record in this case, the Court will 24 adopt the R&R in full. It is therefore ordered that Judge Baldwin’s Report and Recommendation (ECF 25 26 No. 39) is accepted and adopted in full. 27 /// 28 /// 2 Case 3:18-cv-00384-MMD-CLB Document 40 Filed 11/17/20 Page 3 of 3 1 2 It is further ordered that Defendant Ward is dismissed pursuant to Federal Rule of Civil Procedure 4(m). 3 It is further ordered that Defendants’ motion for summary judgment (ECF No. 27) 4 is granted in part and denied in part. It is granted as to Defendant Snyder and denied as 5 to all remaining Defendants. 6 DATED THIS 17th Day of September 2020. 7 8 9 10 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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