United States District Court, D. Idaho
STEPHEN A. CHERRY, Plaintiff,
DWAYNE SHEDD, JEFF KIRKMAN, RANDY HIGGINS, ANDREA BLADES, BRENT REINKE and JESSICA LORELLO, Defendants.
ORDER ON REPORT AND RECOMMENDATION
Honorable Edward J. Lodge United States District Judge.
August 15, 2016, Chief United States Magistrate Ronald E.
Bush issued a Report and Recommendation
(“Report”), recommending that Defendant's
Motion for Summary Judgement be granted. (Dkt.
Any party may challenge the Magistrate Judge's proposed
recommendation by filing written objections within fourteen
days after being served with a copy of the Report. 28 U.S.C.
§ 636(b)(1)(C). The district court must then “make
a de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” Id. The district court may
accept, reject, or modify in whole or in part, the findings
and recommendations made by the Magistrate Judge.
Id.; see also Fed. R. Civ. P. 72(b).
filed objections to the Report arguing it erred in its
conclusions and findings. (Dkt. 85.) The Defendant has filed
a response and the matter is ripe for this Court's
consideration. Fed.R.Civ.P. 72; Local Civ. R. 73.1.
to 28 U.S.C. § 636(b)(1)(C), this Court “may
accept, reject, or modify, in whole or in part, the findings
and recommendations made by the magistrate judge.”
Where the parties object to a report and recommendation, this
Court “shall make a de novo determination of those
portions of the report which objection is made.”
Id. Where, however, no objections are filed the
district court need not conduct a de novo review. To
the extent that no objections are made, arguments to the
contrary are waived. See Fed. R. Civ. P. 72; 28
U.S.C. § 636(b)(1) (objections are waived if they are
not filed within fourteen days of service of the Report and
Recommendation). “When no timely objection is filed,
the Court need only satisfy itself that there is no clear
error on the face of the record in order to accept the
recommendation.” Advisory Committee Notes to
Fed.R.Civ.P. 72 (citing Campbell v. United States Dist.
Court, 501 F.2d 196, 206 (9th Cir.1974)).
case, Plaintiff filed objections and the Court has conducted
a de novo review of those portions of the Report.
The Court has also reviewed the entire Report as well as the
record in this matter for clear error on the face of the
record and finds as follows.
factual and procedural background of this case are well
stated in the Report and not objected to by the parties. As
such, the Court adopts the Report's recitation of the
general background of the case. (Dkt. 82.) The dispute
concerns the Plaintiff's, Stephen Cherry, First Amendment
access-to-court claims against Defendant Randy Higgins. In
general, the Plaintiff's claims allege the Defendant
Higgins confiscated some legal materials and evidence
relating to the Plaintiff's state criminal case when he
was scheduled to be transferred to an out-of-state prison.
(Dkt. 59.) Defendant Higgins filed the instant Motion for
Summary Judgment arguing the Plaintiff has failed to show he
suffered an “actual injury” as a result of his
legal materials being lost. (Dkt. 71.)
Report concludes that Plaintiff has provided no evidence that
he suffered an actual injury from the alleged loss of his
legal materials. (Dkt. 82.) Namely, the Plaintiff has not
established any link between the dismissal of his habeas
petition and the alleged denial of his access to courts
because the dismissals were procedural. In his objections,
Plaintiff maintains his state criminal convictions were
illegally obtained and that overwhelming material facts need
to be heard by a jury and, therefore, the Report erred in
granting the Motion for Summary Judgment. (Dkt. 85.)
Defendant maintains the Plaintiff has failed to offer any
evidence showing that he has suffered an actual injury to
support his claim that he was denied access to the courts.
(Dkt. 86.) Specifically, that there is no evidence in this
case showing the Plaintiff's Federal Habeas case or his
motions in his Kootenai County case were dismissed because
his legal material had been confiscated by the Defendant.
Court has reviewed this issue de novo in light of
the arguments made by the parties both in their objections to
the Report as well as in their initial briefing on the
summary judgment motions. Having done so, this Court agrees
with the Report's conclusion and recommendation. There is
no evidence that any confiscation of the Plaintiffs legal
materials was the basis for the dismissal of the Plaintiffs
other cases or has prevented the Plaintiff from filing future
legal complaints. Therefore, the Plaintiff has not shown an
actual injury to support his claims in this case. For that
reason, the Court agrees with the Report that summary
judgment should be granted on Plaintiffs claims against the
Defendant Higgins. In reaching this conclusion, the Court is
mindful of the fact that the Plaintiff is a pro se
litigant. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th
Cir. 2014); Blaisdell v. Frappiea, 729 F.3d 1237,
1241 (9th Cir. 2013).
THEREFORE IT IS HEREBY ORDERED that the Report and
Recommendation entered on August 15, 2016 (Dkt. 82) is
ADOPTED IN ITS ENTIRETY and the Defendant's Motion for
Summary Judgment (Dkt. 71) is GRANTED.