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Cagle v. Ryan

United States District Court, D. Arizona

October 30, 2017

Shaine Carl Cagle, Plaintiff,
v.
Charles L Ryan, et al., Defendants.

          ORDER

          JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE.

         Pending before the Court is the Report and Recommendation (R&R) of the Magistrate Judge screening the second amended complaint consistent with 28 U.S.C. § 1915(A). (Doc. 26). Plaintiff has filed objections to some portions of the R&R. (Doc. 29).

         This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.'”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge's] recommendations to which the parties object.”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.”).

         Here, the R&R screens Plaintiff's 725 count second amended complaint. Plaintiff objected to the R&R as to counts 575, 576, 577, 578, 614-704, 3-571, 572, 584-593, 594, 595, 596, 597, 602, 603, 604, 605, 606, 607, 581, 705-721, 580, 599, 722, and 608-613.[1]As to all counts to which there is not an objection, the Court accepts and adopts the R&R.

         The Court will now turn to Petitioner's objections:

         I. 575, 576, 577, 578.

         The R&R concludes that the claims in 575-578 are simply additional factual support for the claim in count 574. (Doc. 26 at 13-14). Thus, the R&R recommends that count 574 proceed and counts 575-578 be dismissed. Plaintiff objects and argues that each count should be independent. (Doc. 29 at 1-2). The Court accepts the R&R and overrules Plaintiff's objection.

         II. 614-704.

         The R&R concludes that within the 90 counts of 614-704, Plaintiff actually identifies 5 separate claims, to which the R&R assigned count numbers 614, 615, 616, 617 and 618. (Doc. 26 at 16-17). The R&R then recommends the other 85 counts which do not have a specific factual basis be dismissed. Plaintiff objects and argues he has facts to support 6 additional claims (for 11 total), but concedes the other 79 should be dismissed. (Doc. 29 at 2-3). The Court agrees with the R&R that the second amended complaint contains the factual basis to support only 5 counts, and the other 85 should be dismissed. Plaintiff's objections are overruled.

         III. 3-571.

         Counts 3-571 allege Plaintiff is not being giving religiously compliant meals. The R&R concludes that there should be one count alleging a free exercise of religion violation and one count alleging a RLUIPA violation, rather than one count per meal Plaintiff has eaten. Doc. 26 at 17-20. Plaintiff objects. (Doc. 29 at 3-4). The Court agrees with the R&R and overrules Plaintiff's objections. Counts 5-571 will be dismissed.

         IV. 572.

         Plaintiff alleges one Defendant would not give him grievance forms. The R&R concludes that Plaintiff has failed to show that, even if this claim is true, Plaintiff was in any way impeded from filing grievances. (Doc. 26 at 24-26). Plaintiff objects, but still fails to allege any actual injury. (Doc. 29 at 4). The Court agrees with the R&R that Plaintiff fails to state a claim in this count. Plaintiff's objections are overruled.

         V. 584-593.

         In Counts 584-593 Plaintiff claims he was denied access to the courts by the failure of defendants to send his legal mail. The R&R concludes that all of these claims should be dismissed because Plaintiff has failed to allege any actual injury. (Doc. 26 at 27-31). Plaintiff objects and speculates that he would have prevailed in various court proceedings had his mail been timely delivered. (Doc. 29 at 4-7).[2] The Court agrees with the R&R that Plaintiff makes no non-frivolous argument that the result of any proceeding was affected by his allegedly misdirected mail; thus the Court agrees with the R&R that Plaintiff has failed to show an actual injury. Accordingly, Plaintiff's objections are overruled and these counts will be dismissed.

         VI. 594-596.

         For the reasons stated in Section V above, Plaintiff's objections are overruled and these claims will be dismissed. (See Doc. 26 at 31-32).

         VII. 597.

         For the reasons stated in Section V above, Plaintiff's objections are overruled and this claim will be dismissed. (See Doc. 26 at 32).

         VIII. 602-607.

         For the reasons stated in Section V above, Plaintiff's objections are overruled and these claims will be dismissed. (See Doc. 26 at 32-34).

         IX. 581.

         For the reasons stated in this Court's order at Doc. 9, this count will be dismissed. (Doc. 26 at 35-36). Plaintiff's objections are overruled. (Doc. 29 at 7).

         X. 705-721.

         The R&R concludes that count 705 should be allowed to proceed, but the other counts against various defendants should be dismissed for failing to state a claim (because Plaintiff made only conclusory allegations). (Doc. 26 at 36-37). Plaintiff objects (Doc. 29 at 7-9; 10-11) and offers more unfounded conclusory statements. The Court agrees with the R&R, the objections are overruled, and all but count 705 will be dismissed.

         XI. 580.

         The R&R concludes count 580 fails to state a claim as against any defendant mentioned in it. (Doc. 26 at 40-41). Plaintiff objects to only the dismissal of Defendant Corizon. (Doc. 29 at 9). The Court agrees with the R&R that count 580 fails to state a claim. Plaintiff's objections are overruled and this count will be dismissed.

         XII. 599.

         The R&R concludes that count 599 should proceed against Defendant Sharp, but Defendant Brower should be dismissed. (Doc. 26 at 42-44). Plaintiff objects but continues to offer only speculative and conclusory statements as to Defendant Brower. (Doc. 29 at 9-10). Thus, ...


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