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Leonard v. Baker

United States District Court, D. Nevada

August 17, 2017

WILLIAM LEONARD, Plaintiff,
v.
RENEE BAKER, et al., Defendants.

          ORDER REGARDING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE

          MIRANDA M. 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. 89) (“R&R” or “Recommendation”) relating to Defendants' Motion for Summary Judgment (“Defendants' Motion”) (ECF Nos. 53, 54). Plaintiff filed his objection (ECF No. 90) to which Defendants responded (ECF No. 92). Plaintiff then filed his reply without seeking leave of court (ECF No. 95). LR IB 3-2(a) provides that a reply in response to an objection to the Magistrate Judge's report and recommendation may be filed only with leave of the court. Plaintiff did not seek leave to file a reply and given the extensive briefings relating to Defendants' Motion, the Court finds that Plaintiff's reply is unwarranted and will grant Defendants' motion to strike Plaintiff's reply (ECF No. 98). Because the Court did not grant Plaintiff leave to submit purported new evidence in opposition to Defendants' Motion, the Court grants Defendant's motions to strike Plaintiff's purported new evidence submission and notice of new evidence (ECF Nos. 91, 94, 107). (ECF Nos. 97, 111.)

         Plaintiff filed several motions that are related to the Court's resolution of the R&R: second motion for appointment of counsel (ECF No. 88); second motion for reconsideration (ECF No. 93), motion for continuance (ECF No. 99), and motions for leave to file new evidence (ECF Nos. 103, 114). The Court will address these motions first.

         II. BACKGROUND

         Plaintiff William Leonard is an inmate in the custody of the Nevada Department of Corrections (“NDOC”) and currently housed at Ely State Prison (“ESP”). On May 31, 2016, this Court issued a screening order on Plaintiff's first amended complaint (“FAC”) and permitted Counts I, II and IV to proceed. (ECF No. 13 at 10-11; see ECF No. 11.) The Court dismissed Counts III and V without prejudice. (ECF No. 13 at 10.) The Court also dismissed Defendants Baker, Cox, Aranas, Koehn, Jones, Drain, Smith, Fletcher and Byrne without prejudice. (Id. at 11.) The Court subsequently granted Plaintiff's motion for leave to file his second amended complaint (“SAC”), which is nearly identical to the FAC, and permitted the same three counts to proceed. (ECF No. 48.) Plaintiff then filed a 96-page motion for reconsideration of this Court's May 2016 screening order. (ECF No. 50.) The Court denied his motion, finding that “Plaintiff has not provided the Court with any newly discovered evidence that would change the outcome of the screening order.” (ECF No. 81 at 2.)

         Plaintiff's claims arise from two separate incidents. The first two counts are based on Plaintiff's allegations that he had been suffering from a sore and bleeding penis and that he was not offered a “dry cell” in which to provide his urine sample, but was instead catheterized when he was unable to provide a urine sample. (ECF No. 49 at 7-9.) The third count is based on Defendants Dr. Shaw and Seena's alleged deliberate indifference to Plaintiff's broken denture and his need for “soft diet” as a result. (Id. at 12-13, 21.) The relevant background facts are set forth in detailed in the R&R, which this Court adopts. (ECF No 89 at 4-5, 9.)

         III. PLAINTIFF'S MOTIONS

         Plaintiff's pending motions are essentially motions for reconsideration since the Court has addressed the issues raised in these motions. A motion to reconsider must set forth “some valid reason why the court should reconsider its prior decision” and set “forth facts or law of a strongly convincing nature to persuade the court to reverse its prior decision.” Frasure v. United States, 256 F.Supp.2d 1180, 1183 (D. Nev. 2003). Mere disagreement with an order is an insufficient basis for reconsideration. The Court finds Plaintiff has not presented a valid reason for the Court to reconsider.

         The Court denied Plaintiff's motion for appointment of counsel, finding that this case does not meet the exceptional circumstances requirement for the Court to seek volunteer counsel to represent Plaintiff. (ECF No. 35.) Plaintiff's second motion for appointment of counsel (ECF No. 88) is therefore denied. The Court previously denied Plaintiff's motion for reconsideration (ECF No. 81) and will not reconsider its earlier ruling. Plaintiff's second motion for reconsideration (ECF No. 93) is therefore denied. The Court previously denied Plaintiff's motion for continuance of the summary judgment proceedings to permit him to conduct discovery. (ECF No. 97 at 2.) Plaintiff offers no valid reason for the Court to reconsider and therefore his second motion for continuance (ECF No. 99) is denied.

         Plaintiff filed two motions for leave to file new evidence and arguments in support of his opposition to Defendants' Motion. (ECF No. 103, 114.) In the first motion, he essentially offers evidence presented through his expert witnesses' declarations that catheterization was not medically necessary. He also reargues his objection that “there was no medical order to catheterize Plaintiff because he had a problem with his bladder and was unable to urinate.”[1] (ECF No. 103 at 10.) In the second motion, Plaintiff challenges the order for him to be catheterized and appears to ask for leave to amend to sue the doctor who issued the order. (ECF No. 114 at 4.) The Court finds that Plaintiff has had ample opportunity to present evidence in opposition to Defendants' Motion and in support of his objection. Moreover, Plaintiff's two motions repeat arguments presented in his opposition to Defendants' Motion and his objection. Accordingly, the Court denies Plaintiff's two motions for leave to file new evidence and arguments. Plaintiff cannot continue to repeated motions offering essentially the same arguments because he disagrees with the Court's rulings.

         IV. DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

         A. Legal Standards

         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 ...


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