Hartman v. United States Customs and Border Protection et al

Filing 38

ORDERED adopting Report and Recommendations re 22 Report and Recommendation. Further ordered granting in part and denying in part 12 Partial Motion to Dismiss as follows: granted as to the First through Third and Fifth through Ninth Causes of Action are dismissed with prejudice; granted as to all Defendants except the United States of America, with Defendants CBP, ICE, United States Department of Homeland Security, and Unknown Named Agents John Does 1-10 being dismissed, and Plaintiff has leave to file an Amended Complaint. Signed by Senior Judge David C Bury on 9/30/2015.(BAR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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George Allen Hartman,

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Plaintiff,
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v.
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United States Customs and Border Protection , et)
al.,
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Defendants,
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_______________________________________

CV 14-2090 TUC DCB
ORDER

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On June 30, 2015, the Honorable Charles R. Pyle, United States Magistrate Judge, filed

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a Report and Recommendation in this action. The Report and Recommendation advised this

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Court that the parties agreed to dismissal of all the Plaintiff's claims, except for his Federal Tort

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Claims Act (FTC) claim of battery brought against the Defendant, the United States of America.

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Plaintiff alleges that on April 11, 2011, he was physically injured during an encounter with

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federal agents from United States Customs and Border Protection (CBP) or United States

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Immigration and Customs Enforcement (ICE). Plaintiff alleges he suffered a severe head injury

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diagnosed as a post-concussive syndrome that resulted in episodes over the following year of

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passing out, hearing and sight problems, and forgetting things, and resulted in his passing out

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while riding his motorcycle on April 12, 2012.

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The Magistrate Judge directed Plaintiff to file an Amended Complaint to omit allegations

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pertaining to the dismissed claims and to disclose an expert opinion establishing a causal link

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between the battery claim and the April 12-motorcycle accident.

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The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. §

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636(b), they had 14 days to file written objections to the R&R. See also, Federal Rule of Civil

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Procedure 72(b) (party objecting to the recommended disposition has ten (10) days to file

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specific, written objections). To date, no such objections have been filed.

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Pursuant to 28 U.S.C. § 636(b), this Court makes a de novo determination as to those

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portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1)(C) ("A judge of the

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court shall make a de novo determination of those portions of the report or specified proposed

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findings and recommendations to which objection is made.") To the extent that no objection

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has been made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185,

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1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see

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also, Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist.

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Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only

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satisfy itself that there is no clear error on the face of the record in order to accept the

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recommendation).

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The Court has reviewed the Magistrate Judge’s recommendation that the Court approve
the parties’ agreements to dismissal of claims, that the Plaintiff file an amended complaint, and
that he disclose a medical expert’s opinion linking the battery to the motorcycle accident. The
Court considers the R&R to be thorough and well-reasoned; it is neither clearly erroneous nor
contrary to law. United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989). It shall,
therefore, be accepted pursuant to 28 U.S.C. § 636(b)(1). The Court adopts it. For the reasons
stated in the R&R, the Court dismisses Plaintiff’s claims except for the FTCA battery claim and
directs the Plaintiff to comply with the directives from the Magistrate Judge, including filing
an Amended Complaint.
Accordingly,
IT IS ORDERED that the Report and Recommendation (Doc. 22) is adopted as the
opinion of the Court.

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IT IS FURTHER ORDERED that the Defendants’ Partial Motion to Dismiss (Doc. 12)
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is GRANTED IN PART AND DENIED IN PART, as follows: 1) granted as to the First through
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Third and Fifth through Ninth Causes of Action are dismissed with prejudice; 2) granted as to
all Defendants except the United States of America, with Defendants CBP, ICE, United States

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Department of Homeland Security, and Unknown Named Agents John Does 1-10 being

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dismissed, and 3) Plaintiff has leave to file an Amended Complaint.

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DATED this 30th day of September, 2015.

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