United States District Court, D. Nevada
M. NAVARRO, CHIEF JUDGE UNITED STATES DISTRICT COURT
before the Court is pro se Defendant Ryan C. Bundy's
(“Defendant's”) Objection (ECF No. 1946) to
Magistrate Judge Peggy A. Leen's Order (ECF No. 1892)
denying co-defendant Defendant Ammon E. Bundy's
(“A. Bundy's”) Ex Parte Motion for Hearing
Regarding Custody Conditions (ECF No. 1743). The Government
did not file a response to the Objection, and the time to do
so has passed.
reviewing the order of a magistrate judge, a district judge
should only set aside the order if it is clearly erroneous or
contrary to law. 28 U.S.C. § 636(b)(1)(A); D. Nev. R. IB
3-1(a). A magistrate judge's order is “clearly
erroneous” if the court has “a definite and firm
conviction that a mistake has been committed.” See
Burdick v. Comm'r IRS, 979 F.2d 1369, 1370 (9th Cir.
1992). When reviewing the order, however, the magistrate
judge “is afforded broad discretion, which will be
overruled only if abused.” Columbia Pictures, Inc.
v. Bunnell, 245 F.R.D. 443, 446 (C.D. Cal. 2007)
(citation omitted). The district judge “may not simply
substitute its judgment” for that of the magistrate
judge. Grimes v. City & Cty. of San Francisco,
951 F.2d 236, 241 (9th Cir. 1991).
Bundy's original motion argued that the Nevada Southern
Detention Center (“NSDC”) was impeding on his
Sixth Amendment right to effective assistance of counsel.
(Order 1:25-26, ECF No. 1892). Specifically, A. Bundy claimed
that NSDC told him: “[T]he next time Ammon, Ryan Bundy,
or Ryan Payne were placed in segregation, they would not be
allowed to meet with their lawyers.” (Id.
1:28-2:1). Defendant's motion for joinder included
argument that he would not be able to meet with standby
counsel. (Id. 2:6-9). Defendant specifically
asserted in his motion for joinder:
[A]n inability for [Defendant] to access standby counsel
occurred on March 17, 2017, when it was communicated to
standby counsel while she was in the attorney interview room
at NSDC that [Defendant] was in the administrative
segregation area, and could not visit instant counsel without
being handcuffed for the walk to the attorney interview room.
It was further communicated to instant standby counsel from
NSDC that [Defendant's] refusal to be handcuffed for the
visit let [sic] to the visit not taking place.
(Mot. Joinder to Mot. for Hr'g 2:25-3:3, ECF No. 1745);
(see also R. & R. 2:10-14). Defendant argued
that under the test set forth in Turner v. Safley,
482 U.S. 78, 89 (1987), “there exists no identifiable
legitimate penological interest in requiring an inmate in
administrative segregation to be handcuffed for a
walk.” (Mot. Joinder to Mot. for Hr'g 3:4-4:5);
(see also R. & R. 2:14-19). A. Bundy and
Defendant (collectively, the “defendants”)
protest being detained and assert that the NSDC policies are
unconstitutional. (R. & R. 4:15-17). To better consider
these claims, Judge Leen “requested a report from the
[United States Marshal Service (‘USMS')] regarding
these defendants' complaints about access to
counsel.” (Id. 3:14-15). The USMS Report
indicated that the defendants “were not taken to meet
with their lawyers because they refused to comply with NSDC
rules that apply to all detainees, ” specifically
putting on handcuffs for movement to the attorney visitation
room, and the “defendants have access to their lawyers
on the same basis as other inmates.” (Id.
analysis, Judge Leen first noted, “Ordinarily, a civil
rights action is the appropriate remedy for an inmate to
challenge the conditions of his confinement on constitutional
grounds.” (Id. 4:23-24). However, she
determined that it was necessary to examine the
defendants' opportunity to consult with counsel under 18
U.S.C. § 3142(i)(3) because the defendants are detained.
(Id. 4:26-28). She then found that the defendants
failed to provide an “offer of proof or affidavit
establishing a concrete claim that anything other than the
defendants' refusal to comply with NSDC procedures is
preventing access to their counsel, ” and therefore,
“the court will not conduct an ex parte hearing.”
(Id. 6:18-20). Judge Leen further explained:
“[I]t seems clear that these defendants have made
decisions not to meet with their counsel if required to
comply with facility rules that they be transported to and
from attorney visits in handcuffs. If they choose to visit
with their attorneys, they may do so.” (Id.
filed the instant objection, arguing that Judge Leen
“erroneously assumed without deciding the complained of
conduct was a constitutional policy rather than
punishment.” (Obj. 10:21-23, ECF No. 1946). He further
asserts that of Judge Leen's consideration and reliance
on the USMS Report was clearly erroneous. (Id.
10:3-5, 14:19-15:3, 15:21-22). Lastly, Defendant contends
that Judge Leen “failed to identify . . . [a] legal
standard or analysis to establish the Court's power to
deny defendants an Ex Parte hearing.” (Id.
Court finds that the proper avenue for challenging detention
conditions is a civil rights action. See Bivens v Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
Indeed, Defendant appears cognizant of this method for
relief, as he has filed such a case raising these same
issues. (See Complaint, Bundy v. United
States, Case No. 2:17-cv-1127-JAD-GWF (D. Nev. 2017),
ECF No. 1).
inasmuch as any detention-related claim might impact the
defendants' ability to prepare for trial, the Court finds
that Judge Leen properly inquired into the defendants'
custodial situation regarding access to counsel. See
18 U.S.C. § 3142(i)(3). First, Defendant has elected to
invoke his right to self-representation. (See ECF
Nos. 244, 285). “[A] defendant who waives his right to
counsel does not have a right to advisory counsel.”
United States v. Moreland, 622 F.3d 1147, 1155 (9th
Cir. 2010) (citing United States v. Salemo, 81 F.3d
1453, 1460 (9th Cir. 1996); United States v.
Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994)). As
such, there can be no Sixth Amendment access to counsel
violation for a defendant who has chosen self-representation.
See Faretta v. California, 422 U.S. 806, 834 n.46
(1975) (“[A] defendant who elects to represent himself
cannot thereafter complain that the quality of his own
defense amounted to a denial of ‘effective assistance
of counsel.'”); United States v. Flewitt,
874 F.2d 669, 674-75 (9th Cir. 1989). Therefore, Defendant
had no right to an ex parte hearing regarding his access to
even if appointment of standby counsel to Defendant somehow
conferred a right to access standby counsel despite his pro
se status, Defendant still fails to demonstrate that the jail
safety regulations were not reasonably related to a
legitimate penological interest. See, e.g., Casey v.
Lewis, 4 F.3d 1516, 1520 (9th Cir. 1993) (explaining
that under Ching v. Lewis, 895 F.2d 608, 610 (9th
Cir. 1990), the right of access to the courts includes
contact attorney visitation; however, pursuant to Turner
v. Safley, 482 U.S. 78, 89 (1987), this right may be
limited if such limitation is reasonably related to
legitimate penological interests). Therefore, Judge Leen did
not clearly err in finding that Defendant's refusal to
comply with the NSDC handcuff policy to meet with standby
counsel was his choice, not the NSDC preventing him from
access to standby counsel.
the Court finds that Judge Leen's Order denying such a
hearing was neither clearly erroneous nor contrary to law,
and the Court overrules Defendant's objection.
IS HEREBY ORDERED that Defendant's Objection
(ECF No. 1946) is OVERRULEDDATED ...