Nelson v. Shinn ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Scott Charles Nelson, No. CV-21-00040-PHX-DJH 10 Petitioner, ORDER 11 v. 12 David Shinn, et al., 13 Respondents. 14 15 This matter is before the Court on Petitioner Scott Charles Nelson’s (“Petitioner”) 16 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report 17 and Recommendation (“R&R”) (Doc. 16) issued by United States Magistrate Judge John 18 Z. Boyle. Following a thorough analysis, Magistrate Judge Boyle recommended denial of 19 and dismissal with prejudice of the Petition. (Doc. 16). No objections have been filed. 20 I. Background 21 Petitioner advances three grounds for relief in his Petition. First, he contends 22 Respondents are violating his Eighth Amendment right to be free from cruel and unusual 23 punishment by “continuing to confine him in conditions that exposed him to and caused 24 him to contract COVID-19, which could prove deadly due to his multiple comorbidities.” 25 (Doc. 1 at 14). Second, he claims his right to due process is being denied because by 26 Respondents are aware of Petitioner’s comorbidities and have “failed to take reasonable 27 steps” to protect him from exposure to COVID-19. (Id. at 15). Finally, Petitioner asserts 28 that Respondents are violating the Americans with Disability Act (“ADA”) by failing to 1 provide him with reasonable accommodations. (Id. at 16). Petitioner states that he is very 2 ill and an examining physician believes it is unlikely he will survive his seven-and-half 3 year term of imprisonment, even without exposure to COVID-19. (Id. at 2). He therefore 4 seeks immediate release. 5 In reviewing his Petition, Magistrate Judge Boyle first notes that to the extent 6 Petitioner is challenging the conditions of his incarceration, his suit should be brought as a 7 §1983 claim, not under the federal habeas statute. He further finds that Petitioner’s Ground 8 Three claim, alleging a violation of the ADA, is not cognizable in federal habeas. 9 Assuming, without finding, that Petitioner’s Eighth Amendment and due process claims 10 are cognizable, Magistrate Judge Boyle nonetheless finds that Petitioner is not entitled to 11 relief because he has not exhausted the claims in Grounds One and Two in state court. He 12 thus recommends that the Petition and the claims therein be denied and dismissed with 13 prejudice. He further recommends that the Court deny a Certificate of Appealability and 14 leave to proceed in forma pauperis on appeal because Petitioner has not made a substantial 15 showing of the denial of a constitutional right and jurists of reason would not find the 16 substantive ruling debatable. 17 II. Standard of Review 18 This Court must “make a de novo determination of those portions of the report or 19 specified proposed findings or recommendations to which” a Petitioner objects. 28 U.S.C. 20 § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de 21 novo any part of the magistrate judge’s disposition that has been properly objected to.”); 22 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (same). 23 Further, this Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. 25 P. 72(b)(3). At the same time, however, the relevant provision of the Federal Magistrates 26 Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all. . . of any 27 issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989); 28 see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (“Of course, de novo 1 review of a R&R is only required when an objection is made to the R&R”). Likewise, it 2 is well-settled that “‘failure to object to a magistrate judge’s factual findings waives the 3 right to challenge those findings[.]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 4 2015) (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal quotation 5 marks omitted) (footnote omitted)). 6 III. Analysis 7 Judge Boyle advised the parties that they had fourteen days to file objections and 8 that the failure to timely do so “may result in the acceptance of the Report and 9 Recommendation by the district court without further review.” (Doc. 16 at 8) (citing 10 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). Over 11 fourteen days have passed and neither party has filed an objection. 12 Absent any objections, the Court is not required to review the findings and 13 recommendations in the R&R. See Thomas, 474 U.S. at 149 (noting that the relevant 14 provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), “does not on its face 15 require any review at all . . . of any issue that is not the subject of an objection.”); Reyna- 16 Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine 17 de novo any part of the magistrate judge’s disposition that has been properly objected to.”). 18 Nonetheless, the Court has reviewed Judge Boyle’s comprehensive and well- 19 reasoned R&R and agrees with its findings and recommendations. The Court will, 20 therefore, accept and adopt the R&R and dismiss the Petition. See 28 U.S.C. § 636(b)(1) 21 (“A judge of the court may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same). 23 Accordingly, 24 IT IS ORDERED that Magistrate Judge Boyle’s Report and Recommendation 25 (Doc. 16) is ACCEPTED and ADOPTED as the Order of this Court. 26 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant 27 to 28 U.S.C. § 2254 (Doc. 1) is DENIED and DISMISSED WITH PREJUDICE. 28 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis 2 || on appeal are DENIED because Petitioner has not made a substantial showing of the denial 3|| of a constitutional right and jurists of reason would not find the substantive ruling 4|| debatable. 5 IT IS FINALLY ORDERED that the Clerk of the Court shall terminate this action 6 || and enter judgment accordingly. 7 Dated this 20th day of May, 2021. 8 9 ( . fe □□ 10 norable'Diang/. 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