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
(“R&R”) of United States Magistrate Judge
Valerie P. Cooke (ECF No. 32) relating to Defendants'
Motion for Summary Judgment (ECF No. 24). Plaintiff filed an
objection to the R&R (ECF No. 33), and Defendants filed a
response thereto (ECF No. 34). For the reasons discussed
below, the Court accepts and adopts the R&R in full.
proceeding pro se, is an inmate in the custody of
the Nevada Department of Corrections (“NDOC”).
The events giving rise to this action occurred while
Plaintiff was housed at Ely State Prison (“ESP”).
The Court permitted Plaintiff to proceed on Plaintiff's
access to the courts claim against Defendant B. Howard and
against John Doe mail room correctional officers # 1 and # 2
when he learns their identity. (ECF No. 6 at 4-5; ECF No. 8
at 1.) The Court subsequently permitted Plaintiff to file an
amended complaint to cure the deficiencies of the counts
previously dismissed with leave to amend. (ECF No. 22.)
Further background regarding Plaintiff and this action is
included in the R&R (see ECF No. 32 at 1-2),
which this Court adopts.
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).
light of Plaintiff's objection to the Magistrate
Judge's R&Rs, this Court finds it appropriate to
engage in a de novo review to determine whether to
adopt Magistrate Judge Cooke's R&R. Upon reviewing
the R&R and records in this case, this Court finds good
cause to adopt the Magistrate Judge's R&R in full.
Summary Judgment Standard
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court.” Nw. Motorcycle Ass'n v. U.S. Dep't
of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary
judgment is appropriate when the pleadings, the discovery and
disclosure materials on file, and any affidavits “show
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986).
An issue is “genuine” if there is a sufficient
evidentiary basis on which a reasonable fact-finder could
find for the nonmoving party and a dispute is
“material” if it could affect the outcome of the
suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986). Where reasonable
minds could differ on the material facts at issue, however,
summary judgment is not appropriate. See Id. at
250-51. “The amount of evidence necessary to raise a
genuine issue of material fact is enough ‘to require a
jury or judge to resolve the parties' differing versions
of the truth at trial.'” Aydin Corp. v. Loral
Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting
First Nat'l Bank v. Cities Service Co., 391 U.S.
253, 288-89 (1968)). In evaluating a summary judgment motion,
a court views all facts and draws all inferences in the light
most favorable to the nonmoving party. Kaiser Cement
Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103
(9th Cir. 1986).
moving party bears the burden of showing that there are no
genuine issues of material fact. Zoslaw v. MCA Distrib.
Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the
moving party satisfies Rule 56's requirements, the burden
shifts to the party resisting the motion to “set forth
specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 256. The
nonmoving party “may not rely on denials in the
pleadings but must produce specific evidence, through
affidavits or admissible discovery material, to show that the
dispute exists, ” Bhan v. NME Hosps., Inc.,
929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Orr v. Bank of Am., 285
F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). “The mere existence of a scintilla of evidence
in support of the plaintiff's position will be
insufficient.” Anderson, 477 U.S. at 252.
Prison Litigation Reform Act (“PLRA”) requires
that Plaintiff first exhaust his administrative remedies
through the NDOC grievance process. See 42 U.S.C.
§ 1997e(a); see also Porter v. Nussle, 534 U.S.
516, 524 (2002). Thus, in order to have exhausted NDOC's
administrative remedies, Plaintiff needed to “use all
steps the prison holds out”-specifically, those
identified in Administrative Regulation (“AR”)
740-so that NDOC officials could actually ...