Garrison v. NDOC Director

Opinion

1 2 5 * * * 6 ARTHUR LEE GARRISON, Case No. 3:17-cv-00391-MMD-WGC

7 Plaintiff, v. ORDER 8 LT. BROWN, et al., 9 Defendants. 10 12 Plaintiff Arthur Lee Garrison, who is currently incarcerated and in the custody of the 13 Nevada Department of Corrections (“NDOC”), sued prison officials under 42 U.S.C. § 1983 14 for violating his rights under the Eighth Amendment, and for retaliation, for providing him 15 allegedly inadequate care for his throat—which is painful, contained a large cyst, and 16 became infected. (ECF No. 34.) Before the Court are the report and recommendation of 17 United States Magistrate Judge William G. Cobb (ECF No. 80) (“R&R”), which 18 recommends denying Plaintiff’s motion for a temporary restraining order and/or 19 preliminary injunction requiring he not be moved from Lovelock Correctional Center 20 (“LCC”) (ECF No. 61), and Plaintiff’s motion for reconsideration (ECF No. 67) (“Plaintiff’s 21 Motion”) of Judge Cobb’s order denying his request for appointment of counsel (ECF No. 22 55). The deadline for Plaintiff to object to the R&R has passed, but he has not filed an 23 objection to it. As further explained below, the Court will accept and adopt the R&R in full, 24 and deny Plaintiff’s Motion. The Court first addresses below the R&R, and then Plaintiff’s 25 Motion. 27 This Court “may accept, reject, or modify, in whole or in part, the findings or 28 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 1 timely objects to a magistrate judge’s report and recommendation, then the court is 2 required to “make a de novo determination of those portions of the [report and 3 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 4 to object, however, the court is not required to conduct “any review at all . . . of any issue 5 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, 6 the Ninth Circuit has recognized that a district court is not required to review a magistrate 7 judge’s report and recommendation where no objections have been filed. See United 8 States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 9 employed by the district court when reviewing a report and recommendation to which no 10 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 11 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 12 district courts are not required to review “any issue that is not the subject of an objection.”). 13 Thus, if there is no objection to a magistrate judge’s recommendation, then the court may 14 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 15 (accepting, without review, a magistrate judge’s recommendation to which no objection 16 was filed). 17 Nevertheless, the Court finds it appropriate to engage in a de novo review to 18 determine whether to adopt Magistrate Judge Cobb’s R&R. Judge Cobb recommends 19 denying Plaintiff’s motion for a temporary restraining order and/or preliminary injunction 20 prohibiting the NDOC from moving him from LCC both because Plaintiff presented no 21 evidence that NDOC intended to move him, so he had not shown any likelihood of 22 irreparable injury, and because an incarcerated person has no constitutional right to be 23 housed at a particular institution within a correctional system. (ECF No. 80 at 5-6.) Upon 24 reviewing the R&R and the underlying records, the Court agrees with Judge Cobb’s 25 26 27 28 1 recommendation to deny Plaintiff’s motion for a temporary restraining order and/or motion 2 for preliminary injunction (ECF No. 61).1 4 With respect to Plaintiff’s Motion (ECF No. 67), he objects to Judge Cobb’s order 5 denying his motion for appointment of counsel (ECF No. 55). The Court will deny Plaintiff’s 6 Motion because the Court finds that Judge Cobb’s decision was not clearly erroneous or 7 contrary to law. 8 Under LR IB 3-1, 28 U.S.C. § 636(b), and Fed. R. Civ. P. 72, the Court may 9 reconsider a Magistrate Judge’s pre-trial order where the order is timely objected to and 10 clearly erroneous or contrary to law. The Court reviews the Magistrate Judge’s order de 11 novo, but recognizes that the decision to refuse to request counsel pursuant to 28 U.S.C. 12 § 1915(e)(1) is discretionary. See Campbell v. Burt, 141 F.3d 927, 931 (9th Cir.1998). 13 The Court may only request counsel in exceptional circumstances. See Terrell v. 14 Brewer, 935 F.2d 1015, 1017 (9th Cir.1991). In order to determine whether exceptional 15 circumstances exist, the Court must consider “the likelihood of success on the merits“ as 16 well as the ability of the plaintiff to articulate his arguments “in light of the complexity of the 17 legal issues involved.“ Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citation and 18 internal quotation marks omitted). Neither of these considerations is dispositive—the Court 19 must examine them together. See id. (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 20 (9th Cir. 1986)). 21 Here, Judge Cobb found that Plaintiff has demonstrated an ability to articulate his 22 claims in his motions, and his three amended pleadings, the most recent of which survived 23 screening. (ECF No. 55 at 2.) Further, Judge Cobb found that Plaintiff is unlikely to 24 succeed on the merits, and has not otherwise demonstrated the existence of the 25 exceptional circumstances required to appoint counsel. (Id. at 2-3.) As Plaintiff has shown 26

27 1Plaintiff later filed another motion for a preliminary injunction. (ECF No. 77.) This order does not address that motion. Judge Cobb has set a hearing on that motion. (ECF 28 1 sufficient ability to articulate his claims, this action does not involve substantia! legal 2 complexity, and Plaintiff has not shown a likelihood of success on the merits, the Court 3 finds that Judge Cobb's denial of Plaintiff’s motion for appointment of counsel was not 4 clearly erroneous or contrary to law. The Court will thus deny Plaintiff’s Motion. 6 The Court notes that Plaintiff made several arguments and cited to several cases 7 not discussed above. The Court has reviewed these arguments and cases and determines 8 that they do not warrant discussion as they do not affect the outcome of the issues before 9 the Court. 10 It is therefore ordered that the report and recommendation of Magistrate Judge 11 William G. Cobb (ECF No. 80) is accepted and adopted in its entirety. 12 It is further ordered that Plaintiff’s motion for temporary restraining order and/or 13 preliminary injunction (ECF No. 61) is denied. 14 It is further ordered that Plaintiff’s motion objecting to Judge Cobb’s order denying 15 his motion for appointment of counsel (ECF No. 67) is denied. 16 DATED THIS 15th day of November 2019. 17 18 MIRANDA M. DU 19 CHIEF UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28