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Olausen v. Murguia

United States District Court, D. Nevada

March 8, 2017

STEVEN JOHN OLAUSEN, Plaintiff,
v.
SGT. MURGUIA, et al., Defendants.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate Judge Valerie P. Cooke (ECF No. 179) relating to Plaintiff John S. Olausen's motion for partial summary judgment (ECF No 165), Defendants' cross-motion for summary judgment (ECF No. 149), and Plaintiff's Motion to Dismiss Defendant's Cross-Motion for Summary Judgement (ECF No. 174.) The Magistrate Judge recommends denying Plaintiff's motions and granting Defendants' motion. (ECF No. 179.) Plaintiff was given until November 19, 2016, to file an objection. (Id.) Plaintiff inappropriately filed an emergency motion to stay the proceedings (ECF No. 180) until he was able to file his objections to the R&R. The Court construes Plaintiff' motion as a request for extension and will consider his late filed objections. (ECF No. 181.) The Court also grants Defendants' motion requesting that the Court extend their time to respond to Olausen's objections (ECF No. 183). Plaintiff filed a reply in support of his objections. (ECF No. 185.) However, LR IB 3-2 provides that replies may only be filed with leave of court. Plaintiff did not obtain leave of court to file his reply, and the Court finds that a reply is unnecessary in light of the extensive briefings before the Court. The Court orders that Plaintiff's reply (ECF No. 185) be stricken.

         After careful review of the records in this case, the Court adopts the R&R in full.

         II. BACKGROUND

         Plaintiff, proceeding pro se, is an inmate in the custody of the Nevada Department of Corrections (“NDOC”) currently incarcerated at the Northern Nevada Correctional Center (“NNCC”) in Carson City, Nevada. The Court permitted Plaintiff to file a Second Amended Complaint (“SAC”) (ECF No. 113) and ultimately permitted him to bring two claims pursuant to 42 U.S.C. § 1983: (1) a First and Fourth amendment claim against Defendants Eugene Murguia and Brian Wagner arising from the confiscation and withholding of Plaintiff's television; and (2) a First and Fourteenth amendment claim arising from an incident that occurred during a visitation with his wife. (ECF No. 107; ECF No. 132.) The factual allegations are set out in the R&R, which the Court adopts. (See ECF No. 179 at 2.)

         III. 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 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 Cobb'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.)

         IV. DISCUSSION

         A. Confiscation and Withholding of Television

         1. Fourteenth Amendment Claim

         In the SAC, Plaintiff alleges that in November of 2012 his television was confiscated from another inmate's cell and that when he requested that Wagner return his television, Wagner refused. Wagner's stated basis for refusing was that the television was not functional and, therefore, considered to be contraband under Administrative Regulation (“AR”) 711.

         In Plaintiff's objection to the R&R, he claims that despite the award of his television through the prison's internal grievance process, he has no means to enforce this decision. (ECF No. 181 at 2.) However, if the television was non-functioning at the time Plaintiff won his grievance and sought to have the television returned to him, Defendant Wagner was simply following prison policy; a non-functional television is considered to be “contraband” and therefore cannot be returned to the inmate. While Olausen is correct that the resolution of his grievance explicitly required that the television be returned to him or replaced if NDOC officials had disposed of it, at the time that the grievance was decided, the functionality of the television was not known. (See ECF No. 31-5 at 3.) In light of the prison policy prohibiting the possession of contraband, Olausen could have filed an additional grievance to contest Wagner's determination that his television was non-functioning when confiscated[1] from the other inmate's cell or at the time Olausen sought to have it returned.[2] (See ECF No. 179 at 6-7.) Thus, procedural protections existed by which Plaintiff could have asserted his due process rights.

         The use of NDOC's grievance process is all the process that is required to satisfy Olausen's Fourteenth Amendment rights. (See ECF No. 179 at 7 (citing Nevada Dep't of Corrs. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011)).) The Court agrees with the R&R that utilization of AR 740's grievance procedures provides “critical procedural protections to inmates well in advance of the final confiscation or ...


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