2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 ROBERT LONNELL SMITH, JR., Case No. 3:21-cv-00123-ART-CSD

6 Plaintiff, ORDER v. 7 COUNTY OF WASHOE, et al., 8 Defendants. 9 10 I. SUMMARY 11 Pro se Plaintiff Robert Lonnell Smith, Jr. brings this action under 42 U.S.C. 12 § 1983. Before the Court is a Report and Recommendation (“R&R” or 13 “Recommendation”) of United States Magistrate Judge Craig S. Denney (ECF No. 14 100), recommending the Court grant a motion for summary judgment filed by 15 defendants Balaam, Barrett-Venn, German, Rice, and Washoe County (ECF No. 16 82). Plaintiff filed a partial objection to the R&R in which he did not object to the 17 R&R’s findings on his First Amendment claim but did object to the findings on 18 his Fourteenth Amendment claim. (ECF No. 111 (“Objection”).) Because the Court 19 agrees with Judge Denney’s analysis as to Defendants’ Motion, the Court will 20 adopt the R&R in full. Accordingly, the Court will grant Defendants’ Motion for 21 Summary Judgment. 22 II. BACKGROUND 23 Plaintiff is currently an inmate in the custody of the Nevada Department of 24 Corrections (NDOC), but the allegations of his pro se complaint under 42 U.S.C. 25 § 1983 took place when Plaintiff was a pretrial detainee at the Washoe County 26 Detention Facility. (ECF No. 8.) After screening, the Court allowed Plaintiff to 27 proceed with the following claims in his First Amended Complaint: (1) a First 28 Amendment claim for interference with free speech by censoring legal materials 2 free speech based on the jail’s postcard only mail policy against Washoe County 3 and Washoe County Sheriff Darin Balaam; and (3) a Fourteenth Amendment 4 claim for unconstitutional conditions of confinement as a result of inadequate 5 access to exercise against defendants German, Barrett-Venn, Rice, Sheriff Darin 6 Balaam, and Washoe County. (ECF No. 9.) 7 The Court incorporates by reference Judge Denney’s recitation of the 8 procedural history and of the Plaintiff’s allegations and claims in the First 9 Amended Complaint, which the Court adopts from the R&R. (ECF No. 100 at 1- 10 3.) 11 III. LEGAL STANDARD 12 This Court “may accept, reject, or modify, in whole or in part, the findings 13 or recommendations made by the magistrate judge.”

(b)(1). Where 14 a party timely objects to a magistrate judge’s report and recommendation, then 15 the Court is required to “make a de novo determination of those portions of the 16 [report and recommendation] to which objection is made.”

Where a party fails 17 to object to a magistrate judge’s recommendation, the Court is not required to 18 conduct “any review at all . . . of any issue that is not the subject of an objection.” 19 Thomas v. Arn,

(1985); see also United States v. Reyna-Tapia, 20

(9th Cir. 2003) (“De novo review of the magistrate judges’ 21 findings and recommendations is required if, but only if, one or both parties file 22 objections to the findings and recommendations.”) (emphasis in original); Fed. R. 23 Civ. P. 72, Advisory Committee Notes (1983) (providing that the Court “need only 24 satisfy itself that there is no clear error on the face of the record in order to accept 25 the recommendation.”). 26 Here, The Court’s review is de novo as to Plaintiff’s Fourteenth Amendment 27 claim. As to the First Amendment claim, because Plaintiff did not object to the 28 R&R’s findings (ECF No. 111 at 2), the Court need not conduct de novo review 2 IV. DISCUSSION 3 The Court will begin by addressing Plaintiff’s First Amendment claim. The 4 Court is satisfied that Judge Denney did not clearly err in analyzing Plaintiff’s 5 First Amendment claim. In the R&R, Judge Denney acknowledges that “[p]rison 6 officials may restrict [the First Amendment right to send and receive mail] only 7 so long as the regulation imposed is ‘reasonably related to legitimate penological 8 interests.’” (ECF No. 100 at 14 (quoting Turner v. Safley,

(1987)).) 9 In Turner, the Supreme Court identified four factors for courts to consider 10 in determining the reasonableness of a regulation: (1) whether there is a valid, 11 rational connection between the regulation and the legitimate government 12 objective behind it; (2) whether alternative means of exercising the right remain 13 available; (3) the impact of an accommodation on prison staff, prison resources, 14 and other inmates; and (4) whether there are ready alternatives that could further 15 the government’s objective, and which would suggest that the regulation was an 16 exaggerated response. Turner, 482 U.S. at 90–91. 17 Defendants argued the primary objective of the challenged postcard-only 18 policy was to prevent the smuggling of contraband into the jail in order to promote 19 safety and security of the inmates and staff. As a secondary objective, Defendants 20 argued the regulation was intended to promote efficiency in mail delivery. 21 Applying the Turner factors to the postcard-only policy, Judge Denney 22 found that all four factors weighed in Defendants’ favor. (ECF No. 100 at 17.) “The 23 evidence before the court demonstrates that the postcard-only policy was 24 reasonably related to the legitimate penological interest of safety and security by 25 reducing the amount of contraband, including drugs/controlled substances, 26 entering the jail.” (ECF No. 100 at 17.) The Court finds no clear err in this 27 conclusion and therefore adopts the R&R in full as to the First Amendment claim. 28 Plaintiff’s objection to the R&R’s findings on the Fourteenth Amendment 2 as to his claim for unconstitutional conditions of confinement as a result of 3 inadequate access to exercise and that Defendants presented no defense to his 4 Monell claim on the county’s inmate exercise policy. Second, Plaintiff contends 5 that the Court should not have entertained Defendants’ Motion because a 6 previous motion for partial summary judgment was denied. The Court disagrees 7 with both arguments. 8 A local government “may be sued for constitutional deprivations visited 9 pursuant to governmental ‘custom.’” Monell v. Dep't of Soc. Servs. of City of New

U.S. 658, 690–91 (1978). A successful claim under Monell must show 11 (1) deprivation of a constitutional right; (2) a local government policy or custom; 12 (3) the policy or custom amounted to a deliberate indifference to the deprived 13 constitutional right; and (4) the policy or custom was the moving force behind the 14 constitutional violation. Mabe v. San Bernardino Cnty., Dep't of Pub. Soc. Servs., 15

, 1110–11 (9th Cir. 2001) (citing Van Ort v. Estate of Stanewich, 92

(9th Cir. 1996)). 17 Here, Plaintiff failed to show a deprivation of a constitutional right. The 18 right to exercise is protected by the Constitution. Norbert v. City & Cnty. of San 19 Francisco,

, 928–29 (9th Cir. 2021). Plaintiff’s allegation is not that 20 he was completely deprived of his right to exercise, but that he did not have 21 sufficient time to exercise daily because he was kept in his cell for twenty-two or 22 more hours per day. Plaintiff also alleges that the outdoor recreation grounds 23 were insufficient to engage in meaningful exercise. 24 There is unrefuted evidence in the record that Plaintiff had an average of 25 2.17 hours a day of tier time, during which he was free to use the housing unit’s 26 day room or the outdoor recreation yard for exercise. The outdoor recreation yard, 27 according to unrefuted evidence, was roughly 2,000 square feet, and photos 28 indicate the area is of sufficient size to allow for exercise. In times of inclement 2 establish that Plaintiff was not deprived of his constitutional right to exercise and 3 demonstrate that Plaintiff was provided sufficient time for outdoor recreation and 4 other meaningful recreation. Thus, Plaintiff’s objection on this ground is 5 overruled. 6 Plaintiff’s other objection concerning this Court’s decision to entertain 7 Defendants’ Motion for Summary Judgment after previously denying Defendants’ 8 Partial Motion for Summary Judgment is unavailing. The Defendants’ previous 9 Partial Motion for Summary Judgment was only based on qualified immunity. 10 The Order denying that motion found that Defendants did not present sufficient 11 evidence to support a qualified immunity defense. 12 Following that determination, the Court extended the dispositive motions 13 deadline in anticipation of additional discovery that may lead to additional 14 motions. Plaintiff did not object to that extension. 15 Federal Rule of Civil Procedure 56 does not limit the number of motions for 16 summary judgment that may be filed. Hoffman v. Tonnemacher,

, 17 911 (9th Cir. 2010). The Ninth Circuit has held that “district courts have 18 discretion to entertain successive motions for summary judgment.”

Here, 19 Defendants filed a new motion for summary judgment, on an expanded record, 20 addressing different legal theories and defenses. Defendants filed the motion 21 within the deadline set by this Court, a deadline that Plaintiff did not object to. 22 As such, Plaintiff’s objection to the R&R on this ground is overruled. 23 In sum, the Court finds that Judge Denney did not clearly err in the 24 analysis of Plaintiff’s First Amendment claim and that Plaintiff’s objections to the 25 R&R’s analysis of the Fourteenth Amendment claim are unavailing. The Court 26 therefore overrules Plaintiff’s objections, adopts Judge Denney’s R&R in full, and 27 grants Defendants’ Motion for Summary Judgment. 28 V. CONCLUSION 2 The Court notes that the parties made several arguments and cited to 3 || several cases not discussed above. The Court has reviewed these arguments and 4 || cases and determines that they do not warrant discussion as they do not affect 5 || the outcome of the issues before the Court. 6 It is therefore ordered that Plaintiffs objection (ECF No. 111) to the Report 7 || and Recommendation of U.S. Magistrate Judge Craig S. Denney is overruled. The 8 || Report and Recommendation (ECF No. 100) is therefore adopted in full. 9 It is further ordered that Defendants’ Motion for Summary Judgment (ECF 10 || No. 82) is granted. 11 12 DATED THIS 28th day of September 2023. 13 4 vs Posed de 15 ANNE R. TRAUM 16 UNITED STATES DISTRICT JUDGE

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