Picozzi v. State of Nevada

• Court: District Court, D. Nevada
• Decided: January 23, 2023
• Docket: 2:22-cv-01011
• Status: Unknown

Opinion

2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 MARK PICOZZI, Case No. 2:22-cv-01011-ART-EJY 5 Plaintiff, ORDER ACCEPTING AND ADOPTING 6 v. REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE AND 7 STATE OF NEVADA, et al., DENYING MOTIONS

8 Defendants. (ECF Nos. 53, 55, 57, 58)

9 10 On December 5, 2022, Magistrate Judge Elayna J. Youchah entered a 11 Report and Recommendation (“R&R”) (ECF No. 58) proposing that the Court deny 12 with prejudice Plaintiff Mark Picozzi’s Emergency Motion to Stop Retaliation by 13 Denying Access to his Attorney (ECF No. 53). The parties had until December 19, 14 2022, to object to the R&R. No objection has been filed. Picozzi, however, filed 15 two motions seeking relief about different matters. (ECF Nos. 55, 57). The Court 16 addresses each in turn. 17 I. DISCUSSION 18 A. Report and Recommendation to deny motion (ECF Nos. 53, 58) 19 This Court “may accept, reject, or modify, in whole or in part, the findings 20 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). If a 21 party timely objects to a magistrate judge’s report and recommendation, then the 22 Court is required to “make a de novo determination of those portions of the [report 23 and recommendation] to which objection is made.” Id. But if a party fails to timely 24 object, the Court is not required to conduct “any review at all . . . of any issue 25 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); 26 accord United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding 27 the standard of review employed by the district court when reviewing a report and 28 recommendation to which no objections were made). Thus, if there is no objection 1 to a magistrate judge’s recommendation, then the Court may accept the 2 recommendation without review. 3 Nevertheless, this Court finds it appropriate to engage in a de novo review 4 to determine whether to adopt the R&R. The Magistrate Judge recommends 5 denying Picozzi’s motion because it seeks injunctive relief for new assertions of 6 misconduct based on a new theory of liability that falls outside the corners of his 7 Complaint. (ECF No. 58 at 2–3). Upon reviewing the R&R and underlying motion, 8 this Court finds good cause to adopt the R&R in full. 9 B. Motions for relief (ECF Nos. 55, 57) 10 On November 16, 2022, the Court extended the deadline for Picozzi to file 11 a reply in support of his motions for a temporary restraining order and injunctive 12 relief to November 30, 2022. (ECF No. 46 at 5). Thereafter, Picozzi filed a 13 document titled “Motion to Reply for TRO,” arguing that the Court should enter 14 an order prohibiting Defendants James Scally, Julie Williams, and A. Alvarez 15 from interfering with his ability to file documents in this action by packing up his 16 property when he is sent out for medical appointments. (ECF No. 55). The 17 document is dated November 28, 2022, appears to have been processed by High 18 Desert State Prison (“HDSP”) on that date, and was mailed to the Court the next 19 day. (Id. at 8). In the cover letter that accompanies the document Picozzi states, 20 “I have a Court deadline of November 30, 2022[,] to file my Reply. Mailing this 21 was my only way to get this to the Court.” (ECF No. 55-1 at 1). 22 Picozzi also filed a document titled “‘Priority Review’ Motion Plaintiff is 23 Being Denied Access to the Courts to File Documents and Meet Court Deadlines.” 24 (ECF No. 57). The document is dated December 5, 2022, and was electronically 25 filed with the Court on that date. (Id. at 5). Picozzi argues that he had prepared 26 two “responses with exhibits” for his TRO and was ready to have them 27 electronically filed during his time in the law library on November 28, 2022, but 28 his unit was the only one that wasn’t called for their scheduled time. (Id. at 1–2). 1 Picozzi immediately filed an emergency grievance about the matter, and mailed 2 the documents to the Court. (Id. at 2). Picozzi seeks relief like asking the Court 3 to subpoena security video from November 28, 2022, showing that he was not 4 permitted to access the law library that day and filed an emergency grievance. 5 (Id. at 5). 6 Interested Party Nevada Department of Corrections did not file substantive 7 responses to either motion because they were filed in violation of the stay. (ECF 8 Nos. 60, 62). It appears that ECF No. 55 is Picozzi’s reply in support of his 9 motions for a temporary restraining order and injunctive relief. The Court 10 construes ECF No. 57 as seeking, among other things, to reopen and enlarge the 11 deadline for Picozzi to file his reply brief by one day, making his reply at ECF 12 No. 55 timely. Because Picozzi dispatched his reply (ECF No. 55) to prison 13 officials for mailing on November 28, 2022, the Court considers the reply to be 14 timely and will consider the reply when it determines Picozzi’s motions. See 15 Douglas v. Noelle, 567 F.3d 1103, 1106–07 (9th Cir. 2009) (discussing prison 16 mailbox rule). 17 II. CONCLUSION 18 It is therefore ordered, adjudged, and decreed that the Report and 19 Recommendation of Magistrate Judge Elayna J. Youchah (ECF No. 58) is 20 accepted and adopted in its entirety, and the Emergency Motion to Stop 21 Retaliation (ECF No. 53) is denied with prejudice. 22 It is further ordered that the Motion to Reply for TRO (ECF No. 55) is 23 construed as a timely filed reply in support of the motions for a temporary 24 restraining order and injunctive relief (ECF Nos. 5, 6, 8), and the Court will 25 consider the reply in determining those motions. 26 It is further ordered that the Motion for Priority Review (ECF No. 57) is 27 construed as seeking to reopen and enlarge the deadline to file a reply in support 28 1 || of the motions for a temporary restraining order and injunctive relief and denied 2 || as moot. 3 It is further ordered that the Motion to Reply for TRO and Motion for Priority 4 || Review (ECF Nos. 55, 57) are denied in all other respects. 5 6 7 DATED THIS day of January 2023. 8 9 i idan UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28