Hartman v. United States Customs and Border Protection et al

Filing 77

ORDER granting 52 Motion for Partial Summary Judgment; granting 57 Motion for Summary Judgment; and adopting 69 Report and Recommendation. IT IS FURTHER ORDERED that Plaintiff's battery claim remains pending and the case remains referred to Magistrate Judge Bruce MacDonald. Signed by Senior Judge David C Bury on 9/12/2016. (SIB)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 George Allen Hartman, 10 Plaintiff, 11 United States Customs Protection, et al., ORDER v. 12 No. CV-14-02090-TUC-DCB (BGM) 13 14 and Border Defendants. 15 Plaintiff’s Second Amended Complaint asserts a battery claim based on the 16 Federal Tort Claims Act (FTCA). “Plaintiff alleges that on April 11, 2011, he was 17 physically injured during an encounter with federal agents from United States Customs 18 and Border Protection (CBP) or United States Immigration and Customs Enforcement 19 (ICE). Plaintiff alleges he suffered a severe head injury diagnosed as a post-concussive 20 syndrome that resulted in episodes over the following year of passing out, hearing and 21 sight problems, and forgetting things, and resulted in his passing out while riding his 22 motorcycle on April 12, 2012.” (Order (Doc. 38) at 1.) 23 This Court previously required the Plaintiff to disclose an expert who would attest 24 to a causal link between the battery and the motorcycle accident. When he failed to 25 produce such an expert, the Government filed a Motion for Partial Summary Judgment on 26 its liability for Plaintiff’s motorcycle accident injuries. Plaintiff failed to file a Response 27 to the Motion for Partial Summary Judgment. On March 7, 2016, the Government filed a 28 1 motion asking this Court to rule summarily, pursuant to Local Rule 7.2(i), to grant the 2 Motion for Partial Summary Judgment. 3 Under Rule 7.2(i) of this Court's Local Rules of Practice, a failure to file a 4 responsive pleading may be deemed consent to the motion and this Court may dispose of 5 the motion summarily. “A motion for summary judgment cannot be granted simply 6 because the opposing party violated a local rule.” Marshall v. Gates, 44 F.3d 722, 725 7 (9th Cir. 1995) (citing Henry v. Gill Industries Inc., 983 F.2d 943, 950 (9th Cir. 1993). 8 This is so because a party may oppose a motion for summary judgment without offering 9 affidavits or any other materials in support of its opposition. “‘Summary judgment may 10 be resisted and must be denied on no other grounds than that the movant has failed to 11 meet its burden of demonstrating the absence of triable issues.’” Id. at 106 (quoting 12 Henry, 983 F.2d at 950). 13 Here, the Court has reviewed the Second Amended Complaint and considered the 14 merits of the Government’s Motion for Partial Summary Judgment. As Magistrate Judge 15 MacDonald noted in his Report and Recommendation (R&R), the Plaintiff will have the 16 burden of persuasion at trial. The Government has challenged the sufficiency of his 17 evidence to establish a causal connection between the alleged battery and the motorcycle 18 accident. He has not responded. A trial would be useless as Plaintiff has no evidence to 19 rebut the Government’s assertion that he cannot establish this essential element for 20 liability related to the motorcycle accident. 21 summary judgment as a matter of law. (R&R (Doc. 69) at 6.) The Government is entitled to partial 22 The Plaintiff was also afforded an opportunity to object to the Magistrate Judge’s 23 recommendation that this Court grant the Government’s Motion for Partial Summary 24 Judgment. Plaintiff did not file an Objection. .Pursuant to 28 U.S.C. § 636(b), this Court 25 makes a de novo determination as to those portions of the R&R to which there are 26 objections. 27 determination of those portions of the report or specified proposed findings and 28 recommendations to which objection is made.") To the extent that no objection has been 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo -2- 1 made, arguments to the contrary have been waived. McCall v. Andrus, 628 F.2d 1185, 2 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on 3 appeal); see also, Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. 4 United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is 5 filed, the court need only satisfy itself that there is no clear error on the face of the record 6 in order to accept the recommendation). 7 While there are no objections and review has, therefore, been waived, the Court 8 nevertheless reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law. 9 Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 10 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de 11 novo); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing 12 alone will not ordinarily waive question of law, but is a factor in considering the 13 propriety of finding waiver)). 14 recommendation to grant the Government partial summary judgment is thorough and 15 well-reasoned, without any clear error in law or fact. See United States v. Remsing, 874 16 F.2d 614, 617-618 (9th Cir. 1989) (United States v. Remsing, 874 F.2d 614, 617-618 (9th 17 Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(A) as providing for district court to reconsider 18 matters delegated to magistrate judge when there is clear error or recommendation is 19 contrary to law). The Court finds that the Government’s motion for a summary ruling, 20 pursuant to Rule 7.2(i), may be granted in respect to the motion for partial summary 21 judgment on the question of the Government’s liability for the motorcycle accident. The 22 Court remands this case to the ALJ for further consideration. Here, the Court finds that the Magistrate Judge’s 23 Accordingly, 24 IT IS ORDERED that the Court adopts the Report and Recommendation (Doc. 25 69). 26 IT IS FURTHER ORDERED that the Defendant’s Motion for Summary 27 Disposition of the Motion for Partial Summary Judgment, pursuant to Rule 7.2(i), (Doc. 28 57), is GRANTED. -3- 1 2 3 4 5 IT IS FURTHER ORDERED that the Defendant’s Motion for Partial Summary Judgment (Dc. 52) is GRANTED. IT IS FURTHER ORDERED that Plaintiff’s battery claim remains pending and the case remains referred to Magistrate Judge Bruce MacDonald. Dated this 12th day of September, 2016. 6 7 8 Honorable David C. Bury United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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