United States District Court, D. Nevada
ORDER REGARDING REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE VALERIE P. COOKE
Miranda M. Du UNITED STATES DISTRICT JUDGE
the Court is the Report and Recommendation of United States
Magistrate Judge Valerie P. Cooke (ECF No. 33)
(“R&R”) relating to Defendants' Motion to
Dismiss (“Defendants' Motion”) (ECF No. 27).
The Magistrate Judge recommends that Defendants' Motion
be granted and Plaintiff Demetri Alexander's
(“Alexander”) Amended Complaint (ECF No. 10) be
dismissed. Plaintiff has objected to the R&R. (ECF No.
34.) Defendants have responded. (ECF No. 35.) Plaintiff
responded to Defendants' response, and the parties then
engaged in a flurry of filings about the propriety of
Plaintiff's response. (ECF Nos. 36, 37, 38, 39, 40.) For the
reasons discussed below, the Court adopts and accepts the
R&R in whole and grants Defendants' Motion.
is an inmate in the custody of the Nevada Department of
Corrections (“NDOC”). He is currently housed at
Southern Desert Correctional Center (“SDCC”),
though the events that give rise to this suit occurred at
Northern Nevada Correctional Center (“NNCC”).
Following screening pursuant to 28 U.S.C. § 1915A, the
Court allowed Alexander to proceed with two claims based on
the Americans with Disabilities Act (“ADA”) and
the Rehabilitation Act (“RA”). (ECF No. 14.)
Magistrate Judge recommends granting Defendants' Motion
and dismissing the case in its entirety. (ECF No. 33 at 6.)
Specifically, the Magistrate Judge agrees that Defendant NNCC
is not a legal entity subject to suit, Alexander's claims
for injunctive relief have been rendered moot by his transfer
to another facility, and he failed to allege deliberate
indifference to support any claim for monetary damages under
the ADA. (Id.) In his objection, Alexander argues
that he is entitled to compensatory damages under the ADA,
and that the Magistrate Judge was incorrect to conclude that
his Amended Complaint does not support such a claim. (ECF No.
Review of the Magistrate Judge's Recommendations
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).
Motion to Dismiss Standard
may dismiss a plaintiff's complaint for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). While Rule 8 does not require detailed
factual allegations, it demands more than “labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)). “Factual
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (internal citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pled factual allegations in the complaint;
however, legal conclusions are not entitled to the assumption
of truth. Iqbal, 556 U.S. at 679. Mere recitals of
the elements of a cause of action, supported only by
conclusory statements, do not suffice. Id. at 678.
Second, a district court must consider whether the factual
allegations in the complaint allege a plausible claim for
relief. Id. at 679. A claim is facially plausible
when the plaintiff's complaint alleges facts that allow a
court to draw a reasonable inference that the defendant is
liable for the alleged misconduct. Id. at 678. Where
the complaint does not permit the court to infer more than
the mere possibility of misconduct, the complaint has
“alleged - but not shown - that the pleader is entitled
to relief.” Id. at 679 (internal quotation
marks omitted). When the claims in a complaint have not
crossed the line from conceivable to plausible, the complaint
must be dismissed. Twombly, 550 U.S. at 570.
complaint must contain either direct or inferential
allegations concerning “all the material elements
necessary to sustain recovery under some viable
legal theory.” Twombly, 550 U.S. at 562
(quoting Car Carriers, Inc. v. Ford Motor Co., 745
F.2d 1101, 1106 (7th Cir. 1989) (emphasis in original)).
in pro se complaints are held to less stringent standards
than formal pleadings drafted by lawyers, and must be
liberally construed. See Hughes v. Rowe, 449 U.S. 5,
9 (1980); Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (per curiam); see also Hamilton v. Brown, 630
F.3d 889, 893 (9th Cir.2011); Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir.1990).
Though pro se pleadings are to be liberally construed, a
plaintiff must still ...