United States District Court, D. Nevada
MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE.
Arthur Lee Garrison, who is currently incarcerated and in the
custody of the Nevada Department of Corrections
(“NDOC”), sued prison officials under 42 U.S.C.
§ 1983 for violating his rights under the Eighth
Amendment, and for retaliation, for providing him allegedly
inadequate care for his throat-which is painful, contained a
large cyst, and became infected. (ECF No. 34.) Before the
Court are the report and recommendation of United States
Magistrate Judge William G. Cobb (ECF No. 80)
(“R&R”), which recommends denying
Plaintiff's motion for a temporary restraining order
and/or preliminary injunction requiring he not be moved from
Lovelock Correctional Center (“LCC”) (ECF No.
61), and Plaintiff's motion for reconsideration (ECF No.
67) (“Plaintiff's Motion”) of Judge
Cobb's order denying his request for appointment of
counsel (ECF No. 55). The deadline for Plaintiff to object to
the R&R has passed, but he has not filed an objection to
it. As further explained below, the Court will accept and
adopt the R&R in full, and deny Plaintiff's Motion.
The Court first addresses below the R&R, and then
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).
the Court finds it appropriate to engage in a de
novo review to determine whether to adopt Magistrate
Judge Cobb's R&R. Judge Cobb recommends denying
Plaintiff's motion for a temporary restraining order
and/or preliminary injunction prohibiting the NDOC from
moving him from LCC both because Plaintiff presented no
evidence that NDOC intended to move him, so he had not shown
any likelihood of irreparable injury, and because an
incarcerated person has no constitutional right to be housed
at a particular institution within a correctional system.
(ECF No. 80 at 5-6.) Upon reviewing the R&R and the
underlying records, the Court agrees with Judge Cobb's
recommendation to deny Plaintiff's motion for a temporary
restraining order and/or motion for preliminary injunction
(ECF No. 61).
respect to Plaintiff's Motion (ECF No. 67), he objects to
Judge Cobb's order denying his motion for appointment of
counsel (ECF No. 55). The Court will deny Plaintiff's
Motion because the Court finds that Judge Cobb's decision
was not clearly erroneous or contrary to law.
LR IB 3-1, 28 U.S.C. § 636(b), and Fed.R.Civ.P. 72, the
Court may reconsider a Magistrate Judge's pre-trial order
where the order is timely objected to and clearly erroneous
or contrary to law. The Court reviews the Magistrate
Judge's order de novo, but recognizes that the
decision to refuse to request counsel pursuant to 28 U.S.C.
§ 1915(e)(1) is discretionary. See Campbell v.
Burt, 141 F.3d 927, 931 (9th Cir.1998).
Court may only request counsel in exceptional circumstances.
See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th
Cir.1991). In order to determine whether exceptional
circumstances exist, the Court must consider “the
likelihood of success on the merits“ as well as the
ability of the plaintiff to articulate his arguments
“in light of the complexity of the legal issues
involved.“ Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009) (citation and internal quotation marks
omitted). Neither of these considerations is dispositive-the
Court must examine them together. See Id. (citing
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.
Judge Cobb found that Plaintiff has demonstrated an ability
to articulate his claims in his motions, and his three
amended pleadings, the most recent of which survived
screening. (ECF No. 55 at 2.) Further, Judge Cobb found that
Plaintiff is unlikely to succeed on the merits, and has not
otherwise demonstrated the existence of the exceptional
circumstances required to appoint counsel. (Id. at
2-3.) As Plaintiff has shown sufficient ability to articulate
his claims, this action does not involve substantia! legal
complexity, and Plaintiff has not shown a likelihood of
success on the merits, the Court finds that Judge Cobb's
denial of Plaintiffs motion for appointment of counsel was
not clearly erroneous or contrary to law. The Court will thus
deny Plaintiffs Motion.
Court notes that Plaintiff made several arguments and cited
to several cases not discussed above. The Court has reviewed
these arguments and cases and determines that they do not
warrant discussion as they do not affect the outcome of the
issues before the Court.
therefore ordered that the report and recommendation of
Magistrate Judge William G. Cobb (ECF No. 80) is ...