3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 THOMAS SJOBERG, Case No. 3:17-cv-00263-MMD-WGC
7 Plaintiff, ORDER v. 8 DEPUTY HAWLEY AND SHERIFF 9 McNEIL,
10 Defendants.
11 12 I. SUMMARY 13 Plaintiff Thomas Sjoberg, proceeding pro se, sues Defendants Sheriff Alvin McNeil 14 and Deputy Wayne Hawley for denying him reasonable accommodations for his disability. 15 Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate 16 Judge William G. Cobb (ECF No. 42) recommending that the Court grant Defendants’ 17 motion for summary judgment (“Motion”) (ECF No. 23 (motion); ECF No. 30 (addendum)). 18 The Court has reviewed Plaintiff’s objection (ECF Nos. 45 (objection), 48 (exhibit)) as well 19 as Defendants’ response (ECF No. 46). For the following reasons, the Court declines to 20 adopt the R&R and grants in part and denies in part Defendants’ Motion. 21 II. BACKGROUND 22 A. Factual Background 23 The following facts are undisputed unless otherwise indicated. 24 Defendant Hawley made contact with Plaintiff at the Wal-Mart in Fernley, Nevada 25 on May 6, 2015 as part of an investigation into potential criminal activity. (ECF No. 23-1 26 at 2.) Defendant Hawley asked Plaintiff to accompany him to the substation of the Lyon 27 County Sheriff’s Office for an interview, and Plaintiff agreed. (Id.) Plaintiff participated in 28 a video-recorded interview. (Id.; see also ECF No. 31-1.) 2 at 3.) He wears two hearing aids, but both were broken at the time of his arrest. (Id.) At 3 some points in the video-recorded interview, it seems that Plaintiff understood Defendant 4 Hawley, while other times it seems he did not. For example, when Defendant Hawley 5 suggested possible ways that medication could affect Plaintiff, Plaintiff did not appear to 6 understand Defendant Hawley. Plaintiff offered a non-sequitur response and then said he 7 was hard of hearing and was trying to understand what Defendant Hawley was saying. 8 (ECF No. 31-1 at 18:12:35 to 18:13:20; ECF No. 37 at 6-7.) 9 Defendant Hawley eventually read Plaintiff Miranda warnings and arrested him. 10 (ECF No. 23-1 at 2.) Plaintiff was transported to the Lyon County Jail and released to jail 11 staff for booking. (Id.) 12 Plaintiff pleaded guilty to certain criminal charges but later filed a pre-sentence 13 motion to withdraw his guilty pleas on the ground that his counsel was ineffective in failing 14 to move to suppress statements Plaintiff made to Defendant Hawley. (See id. at 10-11.)1 15 Plaintiff argued that he did not voluntarily, knowingly, and intelligently waive his rights 16 because he has hearing difficulties and was not provided with a hearing device or 17 interpreter to permit him to understand Defendant Hawley’s questions and the advisement 18 of his Miranda rights. (Id. at 11.) 19 The district court conducted an evidentiary hearing and concluded after reviewing 20 the video-recorded interview that Plaintiff could hear and understand Defendant Hawley. 21 (Id. at 12.) The Nevada Court of Appeals affirmed, finding that the record supported the 22 district court’s conclusion. (Id. at 13.) 23 B. Report and Recommendation 24 Judge Cobb considered Plaintiff’s claims in two ways. First, Judge Cobb 25 considered Plaintiff’s claims as they related to his detention at the Lyon County Jail. Judge 26 Cobb found that Defendants were entitled to summary judgment in that regard because 27 /// 28 1The Court takes judicial notice of the state-court documents Defendants filed. Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). 2 at the Lyon County Jail. (ECF No. 42 at 7-8.) Second, Judge Cobb considered Plaintiff’s 3 claims as they related to the interview with Defendant Hawley. Judge Cobb found that 4 Defendants were entitled to summary judgment in that regard because a reasonable 5 accommodation during the interview was not necessary—the transcript and video showed 6 that Plaintiff understood Defendant Hawley. (Id. at 9.) 7 III. LEGAL STANDARD 8 A. Review of the Magistrate Judge’s Recommendations 9 This Court “may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 11 timely objects to a magistrate judge’s report and recommendation, then the court is 12 required to “make a de novo determination of those portions of the [report and 13 recommendation] to which objection is made.” Id. Where a party fails to object, however, 14 the court is not required to conduct “any review at all . . . of any issue that is not the 15 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth 16 Circuit has recognized that a district court is not required to review a magistrate judge’s 17 report and recommendation where no objections have been filed. See United States v. 18 Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 19 employed by the district court when reviewing a report and recommendation to which no 20 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 21 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 22 district courts are not required to review “any issue that is not the subject of an objection.”). 23 Thus, if there is no objection to a magistrate judge’s recommendation, then the court may 24 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 25 1226 (accepting, without review, a magistrate judge’s recommendation to which no 26 objection was filed). 27 /// 28 /// 2 “The purpose of summary judgment is to avoid unnecessary trials when there is 3 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 4 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 5 pleadings, the discovery and disclosure materials on file, and any affidavits “show there 6 is no genuine issue as to any material fact and that the movant is entitled to judgment as 7 a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” 8 if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the 9 nonmoving party and a dispute is “material” if it could affect the outcome of the suit under 10 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where 11 reasonable minds could differ on the material facts at issue, however, summary judgment 12 is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a 13 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ 14 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th 15 Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)).
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3 UNITED STATES DISTRICT COURT
4 DISTRICT OF NEVADA
5 * * *
6 THOMAS SJOBERG, Case No. 3:17-cv-00263-MMD-WGC
7 Plaintiff, ORDER v. 8 DEPUTY HAWLEY AND SHERIFF 9 McNEIL,
10 Defendants.
11 12 I. SUMMARY 13 Plaintiff Thomas Sjoberg, proceeding pro se, sues Defendants Sheriff Alvin McNeil 14 and Deputy Wayne Hawley for denying him reasonable accommodations for his disability. 15 Before the Court is the Report and Recommendation (“R&R”) of United States Magistrate 16 Judge William G. Cobb (ECF No. 42) recommending that the Court grant Defendants’ 17 motion for summary judgment (“Motion”) (ECF No. 23 (motion); ECF No. 30 (addendum)). 18 The Court has reviewed Plaintiff’s objection (ECF Nos. 45 (objection), 48 (exhibit)) as well 19 as Defendants’ response (ECF No. 46). For the following reasons, the Court declines to 20 adopt the R&R and grants in part and denies in part Defendants’ Motion. 21 II. BACKGROUND 22 A. Factual Background 23 The following facts are undisputed unless otherwise indicated. 24 Defendant Hawley made contact with Plaintiff at the Wal-Mart in Fernley, Nevada 25 on May 6, 2015 as part of an investigation into potential criminal activity. (ECF No. 23-1 26 at 2.) Defendant Hawley asked Plaintiff to accompany him to the substation of the Lyon 27 County Sheriff’s Office for an interview, and Plaintiff agreed. (Id.) Plaintiff participated in 28 a video-recorded interview. (Id.; see also ECF No. 31-1.) 2 at 3.) He wears two hearing aids, but both were broken at the time of his arrest. (Id.) At 3 some points in the video-recorded interview, it seems that Plaintiff understood Defendant 4 Hawley, while other times it seems he did not. For example, when Defendant Hawley 5 suggested possible ways that medication could affect Plaintiff, Plaintiff did not appear to 6 understand Defendant Hawley. Plaintiff offered a non-sequitur response and then said he 7 was hard of hearing and was trying to understand what Defendant Hawley was saying. 8 (ECF No. 31-1 at 18:12:35 to 18:13:20; ECF No. 37 at 6-7.) 9 Defendant Hawley eventually read Plaintiff Miranda warnings and arrested him. 10 (ECF No. 23-1 at 2.) Plaintiff was transported to the Lyon County Jail and released to jail 11 staff for booking. (Id.) 12 Plaintiff pleaded guilty to certain criminal charges but later filed a pre-sentence 13 motion to withdraw his guilty pleas on the ground that his counsel was ineffective in failing 14 to move to suppress statements Plaintiff made to Defendant Hawley. (See id. at 10-11.)1 15 Plaintiff argued that he did not voluntarily, knowingly, and intelligently waive his rights 16 because he has hearing difficulties and was not provided with a hearing device or 17 interpreter to permit him to understand Defendant Hawley’s questions and the advisement 18 of his Miranda rights. (Id. at 11.) 19 The district court conducted an evidentiary hearing and concluded after reviewing 20 the video-recorded interview that Plaintiff could hear and understand Defendant Hawley. 21 (Id. at 12.) The Nevada Court of Appeals affirmed, finding that the record supported the 22 district court’s conclusion. (Id. at 13.) 23 B. Report and Recommendation 24 Judge Cobb considered Plaintiff’s claims in two ways. First, Judge Cobb 25 considered Plaintiff’s claims as they related to his detention at the Lyon County Jail. Judge 26 Cobb found that Defendants were entitled to summary judgment in that regard because 27 /// 28 1The Court takes judicial notice of the state-court documents Defendants filed. Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012). 2 at the Lyon County Jail. (ECF No. 42 at 7-8.) Second, Judge Cobb considered Plaintiff’s 3 claims as they related to the interview with Defendant Hawley. Judge Cobb found that 4 Defendants were entitled to summary judgment in that regard because a reasonable 5 accommodation during the interview was not necessary—the transcript and video showed 6 that Plaintiff understood Defendant Hawley. (Id. at 9.) 7 III. LEGAL STANDARD 8 A. Review of the Magistrate Judge’s Recommendations 9 This Court “may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 11 timely objects to a magistrate judge’s report and recommendation, then the court is 12 required to “make a de novo determination of those portions of the [report and 13 recommendation] to which objection is made.” Id. Where a party fails to object, however, 14 the court is not required to conduct “any review at all . . . of any issue that is not the 15 subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth 16 Circuit has recognized that a district court is not required to review a magistrate judge’s 17 report and recommendation where no objections have been filed. See United States v. 18 Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 19 employed by the district court when reviewing a report and recommendation to which no 20 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 21 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 22 district courts are not required to review “any issue that is not the subject of an objection.”). 23 Thus, if there is no objection to a magistrate judge’s recommendation, then the court may 24 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 25 1226 (accepting, without review, a magistrate judge’s recommendation to which no 26 objection was filed). 27 /// 28 /// 2 “The purpose of summary judgment is to avoid unnecessary trials when there is 3 no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 4 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the 5 pleadings, the discovery and disclosure materials on file, and any affidavits “show there 6 is no genuine issue as to any material fact and that the movant is entitled to judgment as 7 a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” 8 if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the 9 nonmoving party and a dispute is “material” if it could affect the outcome of the suit under 10 the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where 11 reasonable minds could differ on the material facts at issue, however, summary judgment 12 is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a 13 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ 14 differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th 15 Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). 16 In evaluating a summary judgment motion, a court views all facts and draws all inferences 17 in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & 18 Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986). 19 The moving party bears the burden of showing that there are no genuine issues of 20 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the 21 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the 22 motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 23 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must 24 produce specific evidence, through affidavits or admissible discovery material, to show 25 that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), 26 and “must do more than simply show that there is some metaphysical doubt as to the 27 material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita 28 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). “The mere existence 2 477 U.S. at 252. 3 IV. DISCUSSION 4 In light of Plaintiff’s objection to the Magistrate Judge’s R&R, this Court finds it 5 appropriate to engage in a de novo review to determine whether to adopt Magistrate 6 Judge Cobb’s R&R. Upon reviewing the R&R and records in this case, the Court declines 7 to adopt the R&R and grants in part and denies in part Defendants’ motion for summary 8 judgment. 9 Defendants argued that they are entitled to summary judgment because Plaintiff’s 10 claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994).2 (ECF No. 23 at 7.) Judge 11 Cobb did not address this argument, instead considering the merits. Nevertheless, the 12 Court agrees with Defendants to the extent that Plaintiff’s claims arise from the alleged 13 denial of a reasonable accommodation during the interview at the Fernley sub-station. 14 For Plaintiff to succeed on this claim, he would have to show that “auxiliary aids and 15 services” were “necessary” to afford him “an equal opportunity to participate in, and enjoy 16 the benefits of, a service, program, or activity of a public entity.” 28 C.F.R. § 35.160(b) 17 (implementing regulation of Title II of the Americans with Disabilities Act (“ADA”)). If 18 Plaintiff established the requisite elements of this claim, he also would establish that he 19 did not voluntarily, knowingly, and intelligently waive his Miranda rights during the 20 interview. But as noted, the state district court found Plaintiff waived his Miranda rights in 21 denying his motion to withdraw guilty plea. (ECF No. 23-1 at 12.) And it is immaterial that 22 Plaintiff’s claims arise under the ADA and the Rehabilitation Act (“RA”) instead of 42 23 U.S.C. § 1983. Bogovich v. Sandoval, 189 F.3d 999, 1002 (9th Cir. 1999) (“There is no 24 reason to believe that ADA claims should be treated any differently than § 1983 claims 25 2In Heck, the Supreme Court held that “in order to recover damages for allegedly 26 unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove 27 that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such 28 determination, or called into question by a federal court’s issuance of a writ of habeas corpus[.]” 512 U.S. at 486-87 (footnote omitted). 2 corpus. Regardless of the type of claim asserted, the traditional purposes of habeas 3 corpus must be preserved.”). Accordingly, the Court will dismiss Plaintiff’s claims as they 4 relate to his interview at the Fernley substation because they are Heck-barred. 5 Plaintiff argues that Heck does not apply because Plaintiff’s First Amended 6 Complaint does not reference his conviction and because Plaintiff does not seek 7 damages for an unconstitutional conviction or imprisonment. (ECF No. 29 at 3; ECF No. 8 45 at 2.) The Court finds this argument unpersuasive because Plaintiff’s success on his 9 ADA and RA claims related to the interview would necessarily imply the invalidity of his 10 conviction by showing that he did not voluntarily, knowingly, and intelligently waive his 11 Miranda rights. 12 Defendants’ Heck argument is unpersuasive with respect to Plaintiff’s claims 13 arising out of the alleged denial of a reasonable accommodation while he was in custody 14 at the Lyon County Jail. These claims challenge the conditions—not the fact or duration— 15 of his confinement. See Bogovich, 189 F.3d at 1002. 16 Defendants argue that they are entitled to summary judgment on the remainder of 17 Plaintiff’s claims because the evidence shows that Plaintiff could communicate effectively 18 without any accommodation for his hearing loss. (ECF No. 23 at 12-13.) The Court finds 19 the evidence equivocal. For example, when Defendant Hawley suggested possible ways 20 that medication could affect Plaintiff, Plaintiff did not appear to understand Defendant 21 Hawley. He offered a non-sequitur response and then said he was hard of hearing and 22 was trying to understand what Defendant Hawley was saying. (ECF No. 31-1 at 18:12:35 23 to 18:13:20; ECF No. 37 at 6-7.) Plus, Plaintiff filed a grievance indicating that Deputy 24 Bronk was “inconsiderate about [his] ability to hear correctly and understand fully.” (See 25 ECF No. 23-1 at 23.) In the grievance, Plaintiff detailed the ways his hearing disability 26 affected him: 27 Today at 0700 [Deputy Bronk] did not knock on window to m[ake] his presence known. I was already awake, I had gone to bathroom and then I 28 opened my shower curtain. He opened my door and yelled at me to sit down what the hell . . . you want a 48 for that. I said no please, I did not hear you hear what he was saying. I kept telling him I can’t hear you and he got bent 2 out of shape that he had to keep repeating himself. He then left for about 5 seconds and came back in and yelled to me next time you will receive a 48. 3 This [is] not the first time I have had a problem with him there are several more incidents involving Deputy Bronk. He doesn’t realize I can read lips 4 and he has said very rude remarks towards me. All the other deput[ies] to my knowledge understand my abilities and limitations. Professionals 5 including officers should remain mindful of my intellectual and functional limitations. 6 7 (Id.) In addition, Plaintiff notes that his hearing impairment “places [him] at added risk of 8 assault and battery by others.” (ECF No. 45 at 5.) A rational trier of fact drawing all 9 inferences in favor of Plaintiff could conclude that some kind of hearing assistance was 10 necessary for Plaintiff. Implementing regulations for Title II of the ADA provide that a 11 public entity must “take appropriate steps to ensure that communications” with disabled 12 persons “are as effective as communications with others.”3 28 C.F.R. § 35.160(a). 13 Judge Cobb found that summary judgment was appropriate because Plaintiff failed 14 to specifically identify the reasonable accommodation that he needed. In his objection, 15 Plaintiff states that he “was not allowed to posses [his] own personally owned 16 communication aids while [he] was in custody.” (ECF No. 45 at 3.) Plaintiff also references 17 his hearing aids in the FAC: “I wear two hearing aids, but both are [sic] broken at the 18 time.” (ECF No. 5 at 3.) Liberally construing Plaintiff’s pleadings, it seems that Plaintiff 19 has identified a specific reasonable accommodation that he needed—hearing aids. 20 Accordingly, the Court will dismiss Plaintiff’s claims related to the alleged denial of 21 a reasonable accommodation during his interview as Heck-barred and deny summary 22 judgment on Plaintiff’s claims as they relate to the alleged denial of a reasonable 23 accommodation at the Lyon County Jail. 24 V. CONCLUSION 25 It is therefore ordered that the Court declines to adopt Judge Cobb’s Report and 26 Recommendation (ECF No. 42). 27 3The ADA and RA are nearly identical and case law construing Title II of the ADA 28 generally applies equally to claims arising under the RA. See, e.g., Duvall v. County of Kitsap, 260 F.3d 1124, 1135-36 (9th Cir. 2001). 1 It is further ordered that Defendants’ motion for summary judgment (ECF No. 23) 2 || is granted in part and denied in part. The Court dismisses Plaintiff's claims as they relate 3 || to the alleged denial of a reasonable accommodation during his interview under the Heck 4 || doctrine. The Court denies summary judgment on Plaintiff's claims as they relate to the 5 || alleged denial of a reasonable accommodation at the Lyon County Jail. 6 DATED THIS 20* day of September 2019. 7 8 IRANDA M. DU 9 CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28