United States District Court, S.D. California
WILLIAM Q. HAYES, District Judge.
The matters before the Court are: (1) the review of the Report and Recommendation (ECF No. 36) issued by United States Magistrate Judge Jan M. Adler, recommending that Plaintiff's Motion for Summary Judgment (ECF No. 32) be denied; and (2) Plaintiff's Motion for Ex Parte Temporary Restraining Order and Preliminary Injunction (ECF No. 52).
On October 10, 2013, Plaintiff Carlos Rios, currently incarcerated at Richard J. Donovan Correctional Facility ("RJD"), commenced this action by filing a Complaint pursuant to 42 U.S.C. section 1983 (ECF No. 1) and a motion for leave to proceed in forma pauperis (ECF No. 2) in this Court. The Complaint asserted claims for violations of the First, Eighth, and Fourteenth Amendments. On March 25, 2014, the Court granted the motion for leave to proceed in forma pauperis, dismissed the Complaint for failure to state a claim, and granted Plaintiff forty-five days to file a First Amended Complaint ("FAC"). (ECF No. 5).
On May 12, 2014, Plaintiff filed the FAC, which is the operative complaint in this case. (ECF No. 9). The FAC asserts claims for violations of the First, Sixth, Eighth, and Fourteenth Amendments and violations of the Americans with Disabilities Act and Rehabilitation Act. Plaintiff alleges that Defendants required him to choose between outdoor exercise and attending the law library. Plaintiff alleges that Defendants refused him the reasonable accommodation of placement in a developmental disability program, which includes legal assistance. Plaintiff alleges that Defendants retaliated against him for complaining about these issues by charging him with a false "128-B general chrono" on August 8, 2013, and that the appeals coordinator did not properly process his inmate appeals. Id. at 9-10. On November 24, 2014, Defendants filed an answer to the FAC. (ECF No. 18). To date, no scheduling order has been issued by the Magistrate Judge.
On February 12, 2015, Plaintiff filed the Motion for Summary Judgment (ECF No. 32). On March 20, 2015, Magistrate Judge Jan M. Adler issued the Report and Recommendation, recommending that Plaintiffs's Motion for Summary Judgment be denied. (ECF No. 36). The docket reflects that neither party has filed objections to the Report and Recommendation.
On April 29, 2015, Plaintiff filed the Motion for an Ex Parte Temporary Restraining Order and Preliminary Injunction (ECF No. 52), which requests the Court issue an order enjoining Defendants from engaging in an "ongoing campaign of interference/obstruction/restrict/seizure, or deprivation of Plaintiff's incoming privileged mail'" from this Court. Id. at 1. On May 29, 2015, Defendants filed an opposition. (ECF No. 60). On June 17, 2015, Plaintiff filed a reply. (ECF No. 65).
II. Review of the Report and Recommendation (ECF No. 36)
The duties of the district court in connection with the report and recommendation of a Magistrate Judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1). The district judge must "make a de novo determination of those portions of the report... to which objection is made, " and "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) (emphasis added). The district court need not review de novo those portions of a report and recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc).
Rule 56 of the Federal Rules of Civil Procedure provides:
(d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to ...