United States District Court, D. Nevada
ORDER (Plf.'s Objection to Report and Recommendation - dkt. no. 91)
MIRANDA M. DU, District Judge.
Before the Court is the Report and Recommendation of United States Magistrate Judge Valerie P. Cooke ("R&R") (dkt. no. 90), primarily relating to Plaintiff's Motion for Partial Summary Judgment (dkt. no. 53) and Defendants' Motion to Dismiss for Failure to Exhaust and/or in the Alternative Motion for Summary Judgment (dkt. no. 73). The Court has considered the objection and the response. For the reasons discussed below, the R&R is adopted in part and rejected in part.
The facts and background of this case are fully set out in the R&R.
The Amended Complaint alleges causes of action as Counts I through IV. Plaintiff's Motion for Partial Summary Judgment (dkt. no. 53) asks for summary judgment as to Counts I, II and III. Defendants' Motion to Dismiss for Failure to Exhaust (dkt. no. 73) asks for dismissal as to all counts and Defendants' Alternative Motion for Summary Judgment (dkt. no. 73) asks for summary judgment as to all counts.
The R&R recommends that the Court: (1) deny Plaintiff's Motion for Partial Summary Judgment (dkt. no. 53); (2) grant Defendants' Motion to Dismiss for Failure to Exhaust (dkt. no. 73) as to Count IV only; (3) grant Defendants' Alternative Motion for Summary Judgment (dkt. no. 73) as to Counts I, II and III; (3) deny Plaintiff's Motion for Sanctions (dkt. no. 67); (4) deny Plaintiff's Motion to Strike (dkt. no. 77); and (5) deny all remaining motions as moot (dkt. nos. 10, 11, 80, 84, 86).
Plaintiff objects to the R&R's treatment of Counts I, II and III. ( See dkt. no. 91 at 13.) Defendants filed a response. (Dkt. no. 92.)
III. LEGAL STANDARD
The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, the Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Where a party fails to object, however, the court is not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985).
While Plaintiff only objects to the R&R's recommendation as to Counts I, II and III, the Court finds it appropriate to engage in a de novo review to determine whether to adopt the recommendations as to all of Plaintiff's claims.
A. Count IV
The Court adopts in full the R&R's recommendations regarding Count IV, which asserts a First Amendment retaliation claim. The Prison Litigations Reform Act (PLRA) states that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies available are exhausted." 42 U.S.C. § 1997e(a). Exhaustion is required "before suing over prison conditions." Booth v. Chumer, 532 U.S. 731, 731 (2001). The Court agrees with the R&R that Plaintiff failed to exhaust his administrative remedies before filing the Amended Complaint. Plaintiff filed the Amended Complaint on August 5, 2013, (dkt. no. 38), but did not receive the response to his second level ...