United States District Court, D. Nevada
ORDER ACCEPTING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation
(“R&R”) of United States Magistrate Judge
Valerie P. Cooke (ECF No. 42) relating to Defendant Isidro
Baca'smotion for summary judgment
(“Motion”) (ECF No. 22.) Plaintiff filed a
response (ECF Nos. 27, 31) and Defendant filed a reply (ECF
No. 30). Plaintiff filed an Objection to the R&R (ECF No.
44) and Defendant filed a response to Plaintiff's
Objection (ECF No. 45). After careful review and for the
reasons discussed below, the Court adopts the R&R in
is an inmate currently housed at Northern Nevada Correctional
Center (“NNCC”). The Court ultimately permitted
Plaintiff to proceed with Count I for violation of his First
Amendment rights with respect to outgoing mail. (ECF No. 6.)
Plaintiff alleges that Defendant violated his First Amendment
rights by removing his outgoing legal mail from the mailroom
to the law library for logging and/or reading. (ECF No. 4 at
4.) As a result of this action, Plaintiff claims that
Defendant's interference with his outgoing legal mail
caused a state court to dismiss plaintiff's timely
opposition because it was filed one day late. (Id.
at 5.) The relevant background, which the Court adopts, is
set out in the R&R. (See ECF No. 42 at 1-2.)
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 the 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.”
Id. In light of Plaintiff's objections, the
Court has engaged in a de novo review to determine whether to
adopt Magistrate Judge Cooke's recommendations. 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).
prisoners have a constitutional right to send and receive
mail, prison administrators are given discretion to govern
the order and security of the prison. (See ECF No.
42 at 5 (citing Witherow v. Paff, 52 F.3d 264, 265
(9th Cir. 1995) (per curiam) and Thornburgh v.
Abbott, 490 U.S. 401, 407-08 (1989)).) Prison officials
are not allowed to review a prisoner's legal documents
before sending them to court, but prison officials may
identify mail from a prisoner's attorney and open such
mail in front of the prisoner for visual inspection.
(See ECF No. 5 (citing Ex Parte Hull, 312
U.S. 546, 549 (1941) and Wolff v. McDonnell, 418
U.S. 539, 576-77 (1974)).)
alleges that Nevada Department of Corrections'
(“NDOC”) officials have read and/or interfered
with his outgoing legal mail in violation of his First
Amendment rights. (ECF No. 4 at 4-6.) However, Plaintiff
presented no evidence in response to Defendant's Motion
or in his Objection to the R&R to demonstrate even a
possibility that NDOC officials read or interfered with his
outgoing legal mail. Based on the evidence available to the
Court and as found by the Magistrate Judge in the R&R,
prison administrators appear to log legal mail before it is
sent out (and not read it). (See ECF No. 42 at 5.)
Moreover, in Defendant's reply in support of his Motion,
Defendant points out that Plaintiff placed his outgoing legal
mail for pickup on a Friday (no time is indicated in the
record). (ECF No. 30 at 4.) NDOC Administrative Regulation
(“AR”) 722 states that mail can be held for up to
twenty-four hours for processing before arriving at the post
office (see ECF No. 22 at 6), and AR 750 states that
mail pickup and delivery does not occur on weekends or
holidays (see AR 750). Thus, it is plausible that
Plaintiff's legal document was not picked up by NDOC
staff for logging until Monday morning at 10:30am, after
which it was returned to the mail room at 3:30pm and sent out
to the post office the subsequent day by 8:00 am.
also appears to rely on a Ninth Circuit case, Douglas v.
Noelle, 567 F.3d 1102 (9th Cir. 2009), to assert that
service is complete the “instant the documents are
placed into the hands of the United States Post Office or
Post Office Box.” (ECF No. 44 at 5.) While this may be
true when documents are filed a day late in federal court, it
does not apply to the same situation in state court, where
specific procedural rules of the state govern determination
of service. Moreover, this Court dismissed Plaintiff's
access to the courts claim in the Screening Order.
(See ECF No. 6.) Thus, Plaintiffs reliance on
Douglas is misplaced.
Court therefore accepts the reasoning of the Magistrate Judge
and adopts the R&R.
therefore ordered, adjudged and decreed that the Report and
Recommendation of Magistrate Judge Valerie P. Cooke (ECF ...