1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jeremy Lee Koons, No. CV-23-00873-PHX-MTL (CDB)
10 Plaintiff, ORDER
11 v.
12 Gwendolyn Smith, et al.,
13 Defendants. 14 15 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 16 Camille D. Bibles (Doc. 32) recommending that Plaintiff Jeremy Lee Koons’ Motion to 17 Request Leave to Amend (Doc. 21) be denied. Plaintiff timely filed objections to the R&R. 18 (Doc. 34.) Defendants filed a response. (Doc. 36.) Plaintiff replied. (Doc. 37.) 19 I. 20 The R&R recounts the procedural history of this case. (Doc. 32 at 1-4.) Neither party 21 objects to that portion of the R&R, and the Court hereby accepts and adopts it. United 22 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 23 II. 24 In reviewing an R&R, the Court “may accept, reject, or modify, in whole or in part, 25 the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). 26 “[T]he district judge must review the magistrate judge’s findings and recommendations de 27 novo if objection is made, but not otherwise.” Reyna-Tapia, 328 F.3d at 1121 (emphasis in 28 original); see Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts need 1 not conduct “any review at all . . . of any issue that is not the subject of an objection”). 2 III. 3 Plaintiff raises ten objections. Defendants argue that the objections do no more than 4 “disput[e], generally, the denial of his [m]otion.” (Doc. 36 at 5.) They note that Rule 5 72(b)(2), Fed. R. Civ. P., requires “specific” objections to the R&R. Thus, “[g]eneral 6 objections that just assert that the R&R was wrong, but fail to specify the findings or 7 portions of the R&R where the magistrate judge erred and the basis for those objections 8 are akin to failing to file an objection and constitute waiver of review by the Court.” (Doc. 9 36 at 8-9 (cleaned up).) Applying this rule, Defendants argue that the Court need not 10 address Plaintiff’s objections. (Doc. 36 at 9-10.) 11 Defendants’ argument has merit. None of Plaintiff’s objections identify specific 12 errors committed in the R&R; instead, they restate conclusory allegations rejected by the 13 R&R and, at times, introduce new facts absent from the proposed second amended 14 complaint. Out of an abundance of caution, however, the Court will address each of 15 Plaintiff’s objections and explain why they are insufficient. 16 Plaintiff’s first objection responds to the R&R’s conclusion that he “fails to 17 plausibly allege Calvin took an adverse action against him due to protected conduct” in 18 part because, while “Plaintiff alleges Calvin retaliated against him for filing this suit against 19 Smith, [he] does not plausibly allege how Calvin knew, prior to October 27, 2023, that 20 Plaintiff had filed a suit against Smith . . .” (Doc. 32 at 10-11.) Plaintiff responds that 21 “Calvin, as well as Barnhart and Defendant Smith plausibly knew of the retaliation suit 22 against Smith in May 2023.” (Doc. 34 at 1.) He then introduces new allegations, absent 23 from his second amended complaint, to support that contention. (See id. at 1-2.) But he 24 does not identify any error in the R&R’s analysis, and the Court finds none. (See id.) 25 Therefore, the Court will overrule the objection. 26 His second objection also fails. There, he contests the R&R’s finding that he does 27 not “plead facts sufficient to establish Calvin took a cognizable adverse action against 28 [him].” (Doc. 32 at 11.) Plaintiff repeats his conclusory allegations that “[t]he cognizable 1 adverse action was not following established” policy and that Calvin “s[aw] an opportunity 2 to retaliate . . . against [him] . . . for his filing of a suit against her friend.” (Doc. 34 at 2.) 3 Plaintiff further repeats that Calvin’s alleged comments regarding a lost email from 4 Plaintiff’s wife demonstrate that “there was an agreement, or meeting of the mind[s] 5 between Smith and Calvin.” (Id.) These arguments do not identify any specific error in the 6 R&R’s reasoning, which noted several pleading deficiencies that Plaintiff does not contest. 7 (See Doc. 32 at 11-12.) The Court finds no error. Thus, this objection will also be overruled. 8 Plaintiff’s third objection challenges the R&R’s conclusion that “Plaintiff fails to 9 plausibly allege that as of November 12, 2023 (one day prior to the date the service order 10 in this matter issued and six weeks before Smith waived service), Barnhart knew of 11 this lawsuit, or knew of any report to the ombudsman regarding any conduct by 12 Barnhart . . .” (Doc. 32 at 13.) Plaintiff states that he “plausibly alleges Barnhart knew 13 about the lawsuit and the report to the ombudsman for the same reasons Calvin and Smith 14 knew of the suit.” (Doc. 34 at 3.) He also attests that he can produce sworn declarations 15 from his mother and stepfather confirming that Barnhart harassed and threatened him. (Id.) 16 These arguments do not identify any error in the R&R’s reasoning (nor does the Court find 17 any) and, like Plaintiff’s first objection, attempts to introduce new allegations. (See id.) 18 This objection will, therefore, be overruled. 19 Plaintiff’s fourth objection fares no better. He objects to the R&R’s statement that 20 “[he] fails to allege when or how Barnhart specifically threatened to take away his visitation 21 privileges, or that Barnhart was authorized to do so.” (Doc. 32 at 13 (emphasis in original).) 22 The R&R also found that certain statements made by Barnhart did not constitute an adverse 23 action under Ninth Circuit caselaw. (Doc. 32 at 13-14.) Plaintiff responds that he “did 24 allege when Barnhart specifically threatened to take away his visitation privileges, even 25 though Barnhart did not state specifically how she would do that.” (Doc. 34 at 3.) He does 26 not identify any error in the R&R’s analysis or argue that the R&R misapplied the many 27 cases it cited in support of its conclusion. (See id.) The Court finds that the R&R correctly 28 applied the law. Accordingly, the Court will overrule this objection. 1 Plaintiff’s fifth objection responds to the R&R’s observation “that Plaintiff, who is 2 presumably a person of ordinary firmness, was not sufficiently intimidated by Calvin’s 3 alleged comments and actions or failures to act that he hesitated to assert claims regarding 4 the alleged retaliation.” (Doc. 32 at 12.) Plaintiff states that “the question of whether a 5 particular action would deter a person of ordinary firmness is an objective one and does 6 not depend on how a particular plaintiff reacts.” (Doc. 34 at 4.) The Court takes Plaintiff 7 to argue that the R&R erred by factoring Plaintiff’s continued engagement in First 8 Amendment activity into its analysis of whether a person of ordinary firmness would have 9 been deterred from such activity by Calvin’s alleged misconduct. Plaintiff provides no 10 caselaw to support this argument, and the Court finds that it is without merit. (See id.) Thus, 11 this objection will be overruled. 12 Plaintiff’s sixth objection challenges the R&R’s conclusion that “Plaintiff’s claims 13 against Calvin do not involve the same claims or operative facts on which Plaintiff has 14 been allowed to proceed in this suit . . .” (Doc. 32 at 12.) In response, Plaintiff contends 15 that “[t]he claims against Calvin have a relationship agreement or meeting of the minds to 16 conspire against Plaintiff for (1) reporting Calvin to the ombudsman, and (2) filing a 17 lawsuit against Defendant Smith.” (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jeremy Lee Koons, No. CV-23-00873-PHX-MTL (CDB)
10 Plaintiff, ORDER
11 v.
12 Gwendolyn Smith, et al.,
13 Defendants. 14 15 Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 16 Camille D. Bibles (Doc. 32) recommending that Plaintiff Jeremy Lee Koons’ Motion to 17 Request Leave to Amend (Doc. 21) be denied. Plaintiff timely filed objections to the R&R. 18 (Doc. 34.) Defendants filed a response. (Doc. 36.) Plaintiff replied. (Doc. 37.) 19 I. 20 The R&R recounts the procedural history of this case. (Doc. 32 at 1-4.) Neither party 21 objects to that portion of the R&R, and the Court hereby accepts and adopts it. United 22 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 23 II. 24 In reviewing an R&R, the Court “may accept, reject, or modify, in whole or in part, 25 the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). 26 “[T]he district judge must review the magistrate judge’s findings and recommendations de 27 novo if objection is made, but not otherwise.” Reyna-Tapia, 328 F.3d at 1121 (emphasis in 28 original); see Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district courts need 1 not conduct “any review at all . . . of any issue that is not the subject of an objection”). 2 III. 3 Plaintiff raises ten objections. Defendants argue that the objections do no more than 4 “disput[e], generally, the denial of his [m]otion.” (Doc. 36 at 5.) They note that Rule 5 72(b)(2), Fed. R. Civ. P., requires “specific” objections to the R&R. Thus, “[g]eneral 6 objections that just assert that the R&R was wrong, but fail to specify the findings or 7 portions of the R&R where the magistrate judge erred and the basis for those objections 8 are akin to failing to file an objection and constitute waiver of review by the Court.” (Doc. 9 36 at 8-9 (cleaned up).) Applying this rule, Defendants argue that the Court need not 10 address Plaintiff’s objections. (Doc. 36 at 9-10.) 11 Defendants’ argument has merit. None of Plaintiff’s objections identify specific 12 errors committed in the R&R; instead, they restate conclusory allegations rejected by the 13 R&R and, at times, introduce new facts absent from the proposed second amended 14 complaint. Out of an abundance of caution, however, the Court will address each of 15 Plaintiff’s objections and explain why they are insufficient. 16 Plaintiff’s first objection responds to the R&R’s conclusion that he “fails to 17 plausibly allege Calvin took an adverse action against him due to protected conduct” in 18 part because, while “Plaintiff alleges Calvin retaliated against him for filing this suit against 19 Smith, [he] does not plausibly allege how Calvin knew, prior to October 27, 2023, that 20 Plaintiff had filed a suit against Smith . . .” (Doc. 32 at 10-11.) Plaintiff responds that 21 “Calvin, as well as Barnhart and Defendant Smith plausibly knew of the retaliation suit 22 against Smith in May 2023.” (Doc. 34 at 1.) He then introduces new allegations, absent 23 from his second amended complaint, to support that contention. (See id. at 1-2.) But he 24 does not identify any error in the R&R’s analysis, and the Court finds none. (See id.) 25 Therefore, the Court will overrule the objection. 26 His second objection also fails. There, he contests the R&R’s finding that he does 27 not “plead facts sufficient to establish Calvin took a cognizable adverse action against 28 [him].” (Doc. 32 at 11.) Plaintiff repeats his conclusory allegations that “[t]he cognizable 1 adverse action was not following established” policy and that Calvin “s[aw] an opportunity 2 to retaliate . . . against [him] . . . for his filing of a suit against her friend.” (Doc. 34 at 2.) 3 Plaintiff further repeats that Calvin’s alleged comments regarding a lost email from 4 Plaintiff’s wife demonstrate that “there was an agreement, or meeting of the mind[s] 5 between Smith and Calvin.” (Id.) These arguments do not identify any specific error in the 6 R&R’s reasoning, which noted several pleading deficiencies that Plaintiff does not contest. 7 (See Doc. 32 at 11-12.) The Court finds no error. Thus, this objection will also be overruled. 8 Plaintiff’s third objection challenges the R&R’s conclusion that “Plaintiff fails to 9 plausibly allege that as of November 12, 2023 (one day prior to the date the service order 10 in this matter issued and six weeks before Smith waived service), Barnhart knew of 11 this lawsuit, or knew of any report to the ombudsman regarding any conduct by 12 Barnhart . . .” (Doc. 32 at 13.) Plaintiff states that he “plausibly alleges Barnhart knew 13 about the lawsuit and the report to the ombudsman for the same reasons Calvin and Smith 14 knew of the suit.” (Doc. 34 at 3.) He also attests that he can produce sworn declarations 15 from his mother and stepfather confirming that Barnhart harassed and threatened him. (Id.) 16 These arguments do not identify any error in the R&R’s reasoning (nor does the Court find 17 any) and, like Plaintiff’s first objection, attempts to introduce new allegations. (See id.) 18 This objection will, therefore, be overruled. 19 Plaintiff’s fourth objection fares no better. He objects to the R&R’s statement that 20 “[he] fails to allege when or how Barnhart specifically threatened to take away his visitation 21 privileges, or that Barnhart was authorized to do so.” (Doc. 32 at 13 (emphasis in original).) 22 The R&R also found that certain statements made by Barnhart did not constitute an adverse 23 action under Ninth Circuit caselaw. (Doc. 32 at 13-14.) Plaintiff responds that he “did 24 allege when Barnhart specifically threatened to take away his visitation privileges, even 25 though Barnhart did not state specifically how she would do that.” (Doc. 34 at 3.) He does 26 not identify any error in the R&R’s analysis or argue that the R&R misapplied the many 27 cases it cited in support of its conclusion. (See id.) The Court finds that the R&R correctly 28 applied the law. Accordingly, the Court will overrule this objection. 1 Plaintiff’s fifth objection responds to the R&R’s observation “that Plaintiff, who is 2 presumably a person of ordinary firmness, was not sufficiently intimidated by Calvin’s 3 alleged comments and actions or failures to act that he hesitated to assert claims regarding 4 the alleged retaliation.” (Doc. 32 at 12.) Plaintiff states that “the question of whether a 5 particular action would deter a person of ordinary firmness is an objective one and does 6 not depend on how a particular plaintiff reacts.” (Doc. 34 at 4.) The Court takes Plaintiff 7 to argue that the R&R erred by factoring Plaintiff’s continued engagement in First 8 Amendment activity into its analysis of whether a person of ordinary firmness would have 9 been deterred from such activity by Calvin’s alleged misconduct. Plaintiff provides no 10 caselaw to support this argument, and the Court finds that it is without merit. (See id.) Thus, 11 this objection will be overruled. 12 Plaintiff’s sixth objection challenges the R&R’s conclusion that “Plaintiff’s claims 13 against Calvin do not involve the same claims or operative facts on which Plaintiff has 14 been allowed to proceed in this suit . . .” (Doc. 32 at 12.) In response, Plaintiff contends 15 that “[t]he claims against Calvin have a relationship agreement or meeting of the minds to 16 conspire against Plaintiff for (1) reporting Calvin to the ombudsman, and (2) filing a 17 lawsuit against Defendant Smith.” (Doc. 34 at 4-5.) This conclusory statement is not 18 accompanied by any reasoning, and it does not identify any specific error in the R&R’s 19 analysis. (See id.) The Court finds no error. Like the objections before it, this objection will 20 be overruled. 21 Plaintiff’s seventh objection counters the R&R’s findings that “[he] does not allege 22 Barnhart actually curtailed any visitation,” that he continued to meet with his mother and 23 child, and that he “fails to sufficiently allege harm arising from Barnhart’s actions.” (Doc. 24 32 at 14.) Plaintiff responds that he is “currently suspended from visitation privileges until 25 December 2024 based on a false disciplinary ticket.” (Doc. 34 at 5.) He contends that “[t]his 26 is the third fraudulent ticket [he] has received . . . constituting harm arising from Barnhart’s 27 harassment . . .” (Id.) These arguments do not point out any error in the R&R’s analysis, 28 and the Court finds none. (See id.) Plaintiff’s arguments merely advance new allegations. 1 (See id.) The objection will, therefore, be overruled. 2 His eighth objection also fails. There, he responds to the R&R’s conclusion that his 3 “allegation that [his] cell was searched and someone put his draft second amended 4 complaint on his bed is insufficient to show an adverse, retaliatory action.” (Doc. 32 at 18.) 5 The R&R also notes that “[i]t is Plaintiff’s burden to demonstrate any alleged adverse 6 action did not reasonably advance a legitimate correctional goal,” and “[p]rison cell 7 searches can be conducted for any reason or no reason, and there is no argument that they 8 do not advance legitimate correctional goals of promoting safety and security.” (Id.) 9 Plaintiff says that the cell search was pretextual and references new facts absent from the 10 proposed second amended complaint. (Doc. 34 at 5-7.) His arguments do not specifically 11 identify any error in the R&R’s analysis. (See id.) The Court finds that the R&R correctly 12 applied the law. Thus, the objection will be overruled. 13 Plaintiff’s ninth objection challenges the R&R’s finding that “[his] bald allegation 14 that Warden Washburn changed his housing assignment in retaliation . . . is insufficient to 15 proceed on a [42 U.S.C.] § 1983 action against the Warden.” (Doc. 32 at 19.) Plaintiff 16 argues that the Warden’s justifications for changing his housing were pretextual and then 17 advances new allegations absent from the second amended complaint. (Doc. 34 at 7.) The 18 Court finds no error in the R&R’s analysis. The objection will be overruled. 19 Plaintiff’s tenth and final objection responds to the R&R’s conclusion that, with 20 respect to his allegations of a conspiracy, he asserts only “conclusory allegations without 21 specific facts, which are insufficient to allow a plaintiff to proceed on a claim of 22 conspiracy.” (Doc. 32 at 21.) Plaintiff says only that he “has provided specific detailed 23 allegations that support[] a c[h]ronology of events that Defendant Smith, Warden 24 Washburn, Sgt. Calvin, CO III Anozi, CO III Barnhart, and Frink are all involved in a 25 conspiracy to retaliate . . .” (Doc. 34 at 8.) This argument does nothing to identify any error 26 in the R&R’s analysis. (See id.) It merely states that Plaintiff disagrees with it. (See id.) 27 That is insufficient. Additionally, the Court finds no error in the R&R’s analysis. Thus, the 28 objection will be overruled. 1 IV. 2 Accordingly, 3 IT IS ORDERED that the Report and Recommendation of the Magistrate Judge (Doc. 32) is adopted, and Plaintiff's objections (Doc. 34) are overruled. 5 IT IS FURTHER ORDERED that Plaintiff's Motion to Request Leave to Amend 6|| (Doc. 21) is denied. 7 IT IS FINALLY ORDERED that the proposed second amended complaint (Doc. 8 || 22) shall be stricken from the docket. 9 Dated this 15th day of July, 2024. 10 WMichak T. Shure 12 Michael T, Liburdi 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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