Smith v. County of Washoe ( 2023 )

1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 ROBERT LONNELL SMITH, JR., Case No. 3:21-cv-00123-ART-CSD 5 Plaintiff, ORDER 6 v. 7 COUNTY OF WASHOE, et al., 8 Defendants. 9 Pro se Plaintiff Robert Lonnell Smith, Jr. brings this action under 42 U.S.C. 10 § 1983. Before the Court are: (1) the Report and Recommendation (“R&R” or 11 “Recommendation”) of United States Magistrate Judge Craig S. Denney (ECF No. 12 56) recommending that Defendant Sheriff Darin Balaam’s motion for judgment 13 on the pleadings (ECF No. 33) be granted; and (2) the R&R of Judge Denney (ECF 14 No. 57) recommending that Defendants’ motion for partial summary judgment 15 (ECF No. 34) be denied. With an extension granted by the Court (ECF No. 64), 16 Plaintiff had until December 15, 2022, to file an objection to the R&R 17 recommending that Defendant Balaam’s motion for judgment on the pleadings 18 be granted. Defendants had until November 21, 2022 to file an objection to the 19 R&R recommending that Defendants’ motion for partial summary judgment be 20 denied. To date, no objection to either R&R has been filed. For this reason, and 21 as explained below, the Court adopts the R&Rs, and will grant Defendant 22 Balaam’s motion for judgment on the pleadings and deny Defendants’ motion for 23 partial summary judgment. 24 The Court “may accept, reject, or modify, in whole or in part, the findings 25 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 26 a party fails to object to a magistrate judge’s recommendation, the Court is not 27 required to conduct “any review at all . . . of any issue that is not the subject of 28 1 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. 2 Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the 3 magistrate judges’ findings and recommendations is required if, but only if, one 4 or both parties file objections to the findings and recommendations.”) (emphasis 5 in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that 6 the Court “need only satisfy itself that there is no clear error on the face of the 7 record in order to accept the recommendation.”). 8 Because there is no objection to either R&R, the Court need not conduct 9 de novo review, and is satisfied Judge Denney did not clearly err. The first R&R 10 addresses Defendant Balaam’s motion for judgment on the pleadings which seeks 11 dismissal of Defendant Balaam as duplicative of Defendant Washoe County 12 because the screening order permitted Plaintiff’s claims to proceed only as Monell 13 claims, whereby Defendant Balaam named in his official capacity duplicates the 14 liability sought against Defendant Washoe County. (ECF No. 33.) Judge Denney 15 states that “Balaam is correct that ‘an official capacity suit against a municipal 16 officer is equivalent to a suit against the entity.’” (ECF No. 56 at 3 (citing Center 17 for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Dept., 533 F.3d 780, 799 18 (9th Cir. 2008)).) On December 1, 2022, the Court granted Plaintiff’s request for 19 an extension of time to file an objection, which Defendants did not oppose, and 20 the deadline was extended to December 15, 2022. (ECF Nos. 60, 62, 64.) On 21 December 16, 2022, Plaintiff filed a “motion to withdraw objections to 22 Magistrate’s Report and Recommendation.” (ECF No. 69.) Plaintiff has thus 23 indicated that he does not seek to file an objection and the deadline for objections 24 has passed. The Court agrees with Judge Denney’s analysis and will adopt the 25 R&R. 26 The second R&R addresses Defendants’ partial motion for summary 27 judgment which seeks dismissal of Smith’s Fourteenth Amendment conditions of 28 confinement claim on the basis of qualified immunity because it was not clearly 1 || established that Defendants’ practice of letting Plaintiff out of his cell for two 2 || hours each day was clearly prohibited under existing law. (ECF No. 34.) 3 || Recommending denial of Defendants’ motion, Judge Denney states that 4 || “Defendants focus only on the fact that Plaintiff was given two hours of tier time, 5 || or two hours out of his cell, per day. They provide no information regarding how 6 || an inmate may spend the time out of his cell, Le., showering, accessing the kiosk, 7 || making phone calls, etc. Importantly, they do not address how long detainees 8 || may use the recreation yard during the two hours out of their cells so the court 9 || can determine whether this case falls under clearly established precedent or not.” 10 || (ECF No. 57 at 8.) The Court agrees with Judge Denney. Defendants had until 11 || November 21, 2022 to file an objection and no objection was filed. 12 Having reviewed both of the R&Rs and the record in this case, the Court 13 || will adopt both of the R&Rs in full. 14 It is therefore ordered that Judge Denney’s Report and Recommendation 15 || (ECF No. 56) is accepted and adopted in full. 16 It is further ordered that Judge Denney’s Report and Recommendation 17 || (ECF No. 57) is accepted and adopted in full. 18 It is further ordered that Defendant Balaam’s motion for judgment on the 19 || pleadings (ECF No. 33) is granted. 20 It is further ordered that Defendant Balaam be terminated as a party from 21 || this case. 22 It is further ordered that Defendants’ motion for partial summary judgment 23 || (ECF No. 34) is denied. 24 DATED THIS 7 day of March 2023. 25 26 padi 27 ANNE R. TRAUM 28 UNITED STATES DISTRICT JUDGE