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Quintero v. Palmer

United States District Court, D. Nevada

January 27, 2017

JOHN QUINTERO, Plaintiff,
v.
JACK PALMER, et al., Defendants.

          ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE

          MIRANDA DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court is the Report and Recommendation of United States Magistrate Judge Valerie P. Cooke (ECF No. 224) (“R&R”) resolving three motions brought by Plaintiff John Quintero: motion to alter or amend the judgment (“Motion to Amend”) (ECF No. 212), motion for transcripts of settlement conferences (ECF No. 218), and motion for evidentiary hearing (ECF No. 219). The Court has reviewed Plaintiff's objection (“Objection”) (ECF No. 226), Plaintiff's supplement to his Objection (“Supplemental Objection”) (ECF No. 227), and Defendants' response to Plaintiff's Objection (“Response”) (ECF No. 230). For the reasons discussed below, the Court accepts and adopts the R&R in its entirety.

         In addition, since the issuance of the R&R, Plaintiff has filed a motion to enforce the settlement agreement (“Motion to Enforce”) (ECF No. 228). After review of the Motion to Enforce, Defendants' response (ECF No. 233), Plaintiff's reply (ECF No. 234), and Plaintiff's supplemental reply (ECF No. 235), the Court finds that Plaintiff has not demonstrated that NDOC has failed to meet its obligations under the settlement agreement. The Court therefore denies Plaintiff's Motion to Enforce.

         II. BACKGROUND

         Plaintiff, proceeding pro se and in forma pauperis, is an inmate in the custody of Nevada Department of Corrections (“NDOC”) and is currently housed at Northern Nevada Correctional Center (“NNCC”) in Carson City. After amending his complaint several times, Plaintiff filed his Fourth Amended Complaint pursuant to 42 U.S.C. § 1983 to assert a variety of claims, including alleged violations of Plaintiff's First and Fourteenth Amendment rights as well as Plaintiff's rights under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). (See ECF No. 105.) The relevant background facts, which the Court adopts, are set out in the R&R. (See ECF No. 224 at 1-2.)

         In February 2016, the parties participated in a settlement conference before the Magistrate Judge and reached resolution on a settlement agreement (“Settlement Agreement”) to resolve this case. (ECF No. 189.) The Court subsequently granted the parties' stipulation of dismissal on May 6, 2016. (ECF No. 207.) At issue in Plaintiff's various motions and upon which the Magistrate Judge made her recommendation is whether the Court should amend the judgment to allow Count X, which the parties had agreed to dismiss with prejudice (ECF No. 200), to go forward. (ECF No. 212 at 1.)

         III. PLAINTIFF'S OBJECTIONS TO R&R

         A. Legal Standard

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then 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). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review “any issue that is not the subject of an objection.”). Thus, if there is no objection to a magistrate judge's recommendation, then the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.Supp.2d at 1226 (accepting, without review, a magistrate judge's recommendation to which no objection was filed).

         In light of Plaintiff's Objection, the Court conducts a de novo review to determine whether to adopt the R&R.

         B. Jurisdiction

         In the R&R, the Magistrate Judge first considers whether this Court has jurisdiction to address Plaintiff's pending motions (ECF Nos. 212, 218 and 219). (ECF No. 224 at 2-3.) Plaintiff filed the Motion to Amend (ECF No. 212) four days before filing notice of an appeal of this Court's dismissal order (ECF No. 213). Under Federal Rule of Appellate Procedure 4(a)(4), a notice of appeal becomes effective only upon entry of an order disposing of the Rule 59(e) motion. Miller v. Marriott Int'l Inc., 300 F.3d 1061, 1063-64 (9th Cir. 2002). The Magistrate Judge therefore correctly found that the Court has jurisdiction to consider the Motion to Amend and related motions.

         C. Motion to Amend

         Plaintiff asks the Court to amend the judgment to allow Count X to proceed. In Count X, Plaintiff challenged NDOC's policy of allowing inmates to possess religious hardcover books without their covers but otherwise banning all secular hardcover books. (ECF No. 105 at 21-22.) Plaintiff contends that Defendants made certain misrepresentations during the settlement conference in order to “trick” him into agreeing to dismiss Count X with prejudice. (ECF No. 212 at 2.)

         Although not mentioned in the Federal Rules of Civil Procedure, motions for reconsideration may be brought under Rules 59(e) and 60(b).[1] Rule 59(e) provides that any motion to alter or amend a judgment shall be filed no later than 28 days after entry of the judgment. The Ninth Circuit has held that a Rule 59(e) motion for reconsideration should not be granted “absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (quoting 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). Specifically, under Rule 59(e), a court may alter or amend a judgment: “(1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). Thus, a motion for reconsideration must set forth the following: (1) some valid reason why the court should revisit its prior order; and (2) facts or law of a “strongly convincing nature” in support of reversing the prior decision. Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003).

         Plaintiff has not presented a valid reason for the Court to amend the judgment. The Court will address the pertinent grounds for not amending the judgment under Rule 59(e).

         1. Newly Discovered or Previously Unavailable Evidence

         This Court agrees with the Magistrate Judge's finding that evidence about a prior settlement agreement between NDOC and Prison Legal News (“PLN Agreement”) does not constitute “new evidence” that would justify reconsideration of the court's order dismissing Count X. (ECF No. 224 at 6.) Under Rule 59(e), the moving party must demonstrate that the “evidence was discovered after the judgment, that the evidence could not be discovered earlier through due diligence, and that the newly discovered evidence is of such a magnitude that had the court known of it earlier, the outcome likely would have been different.” Dixon v. Wallowa Cnty., 336 F.3d 1013, 1022 (9th Cir. 2003).

         Plaintiff alleges that Defendants misrepresented the effect of the PLN Agreement by informing Plaintiff that it required NDOC to ban all hardcover books, including both religious and secular ones, which induced him to settle Count X. (ECF No. 212 at 2-3, 8.) Plaintiff cites to an unpublished Ninth Circuit decision, Ashker v. Schwarzenegger, 339 Fed.Appx. 751 (9th Cir. 2009), holding that a blanket ban on hardcover books is unconstitutional to allege that the failure of Defendants to provide a full ...


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