Smith v. Gronseth et al

Filing 35

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 29 Objections to Report and Recommendation filed by Jess R. Smith. **2 PAGE(S), PRINT ALL**(Jess Smith, Prisoner ID: 739951)(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 JESS R. SMITH, 8 9 10 Plaintiff, CASE NO. C16-5775BHS-DWC ORDER ADOPTING REPORT AND RECOMMENDATION v. B. GRONSETH, et al., 11 Defendants. 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable David W. Christel, United States Magistrate Judge (Dkt. 28), and 15 Plaintiff Jess Smith’s (“Smith”) objections to the R&R (Dkt. 29). 16 On December 14, 2016, Judge Christel issued the R&R recommending that the 17 Court deny Smith’s motion because he failed to show either success on the merits or 18 irreparable harm. Dkt. 28. On December 22, 2016, Smith filed objections. Dkt. 29. 19 The district judge must determine de novo any part of the magistrate judge’s 20 disposition that has been properly objected to. The district judge may accept, reject, or 21 modify the recommended disposition; receive further evidence; or return the matter to the 22 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). ORDER - 1 1 In this case, Smith advances two major objections. First, Smith objects on the 2 grounds that Defendants have prevented access to his legal materials. Dkt. 29 at 3. 3 Judge Christel declined to consider this issue because Smith raised it for the first time in 4 his reply briefs. Dkt. 28 at 2. The Court agrees with Judge Christel that the issue is 5 beyond the scope of the original motion and adopts the R&R on this issue. 6 Second, Smith contends that failure to provide access to out-of-state appellate 7 decisions is a violation of his right to access the courts. Dkt. 29. Judge Christel 8 concluded that Smith had failed to show that he was likely to succeed on the merits or 9 that serious questions going to the merits existed. Dkt. 28 at 3–5. The Court agrees with 10 both conclusions. Because a federal habeas petition addresses whether a state court 11 unreasonably applied clearly established federal law, it is unlikely that an out-of-state 12 appellate opinion would shed additional light on clearly established federal law. 13 Therefore, the Court having considered the R&R, Smith’s objections, and the remaining 14 record, does hereby find and order as follows: 15 (1) The R&R is ADOPTED; and 16 (2) Smith’s motion for a temporary restraining order and preliminary 17 injunction is DENIED. 18 Dated this 8th day of February, 2017. A 19 20 BENJAMIN H. SETTLE United States District Judge 21 22 ORDER - 2

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