Douglas v. Smelosky et al

Filing 71

ORDER: (1) Adopting 70 Report and Recommendation; (2) Denying In Part and Granting In Part 66 Motion for Summary Judgment; (3) Resetting Pretrial Dates and Deadlines. Magistrate Judge Skomal is directed to set a mandatory settlement confe rence at the earliest opportunity. Proposed Pretrial Order due by 10/10/2014. Final Pretrial Conference reset for 10/17/2014 01:30 PM in Courtroom 2D before Judge Gonzalo P. Curiel. Signed by Judge Gonzalo P. Curiel on 7/15/2014. (All non-registered users served via U.S. Mail Service)(srm)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT DOUGLAS, 12 13 Plaintiff, v. 14 15 MICHAEL SMELOSKY, Warden, et al., 16 Defendants. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:10-cv-1464-GPC-BGS ORDER: (1) ADOPTING REPORT AND RECOMMENDATION, (ECF NO. 70); (2) DENYING IN PART AND GRANTING IN PART MOTION FOR SUMMARY JUDGMENT, (ECF NO. 66); (3) RESETTING PRETRIAL DATES AND DEADLINES 19 20 On August 6, 2012, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983, 21 alleging Defendants violated Plaintiff’s Eighth Amendment right to be free from cruel 22 and unusual punishment when Plaintiff was forced to stand bare-chested against a hot 23 wall and then locked in a hot, unventilated van. (ECF No. 1.) The case was assigned 24 to Magistrate Judge Skomal for disposition on report and recommendation. 25 Only Plaintiff’s claim against defendant Valenzuela in his individual capacity 26 remains. (See ECF No. 18.) On January 30, 2014, Valenzuela filed a motion for 27 summary judgment, (ECF No. 66), which Plaintiff opposed on March 28, 2014, (ECF 28 No. 69). 3:10-cv-1464-GPC-BGS 1 On June 19, 2014, Magistrate Judge Skomal issued a report and recommendation 2 (“Report”), recommending that Valenzuela’s Motion for Summary Judgment be denied 3 in part and granted in part—denied as to Plaintiff’s claim that he was locked in a hot, 4 unventilated van and granted as to Plaintiff’s claim that he was forced to stand bare- 5 chested against a hot wall. (ECF No. 70.) Magistrate Judge Skomal set a deadline of 6 July 7, 2014, to file any objections to the Report. To date, the Court has received no 7 objections to the Report. 8 A district judge’s role in reviewing a magistrate judge’s report and 9 recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, a district 10 judge “shall make a de novo determination of those portions of the report . . . to which 11 objection is made,” and “may accept, reject, or modify, in whole or in part, the findings 12 or recommendations made by the magistrate [judge].” When no objections are filed, 13 the Court may assume the correctness of the magistrate judge’s findings of fact and 14 decide the motion on the applicable law. Campbell v. United States Dist. Ct., 501 F.2d 15 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 16 2001). Under such circumstances, the Ninth Circuit has held that “a failure to file 17 objections only relieves the trial court of its burden to give de novo review to factual 18 findings; conclusions of law must still be reviewed de novo.” Barilla v. Ervin, 886 19 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 20 F.2d 452, 454 (9th Cir. 1983)). 21 Because no objections to the Report have been filed, the Court assumes the 22 correctness of Magistrate Judge Skomal’s factual findings and adopts them in full. The 23 Court has conducted a de novo review of Magistrate Judge Skomal’s legal conclusions 24 and finds the Report provides a cogent analysis of Valenzuela’s Motion for Summary 25 Judgment. 26 Accordingly, IT IS HEREBY ORDERED that: 27 1. The Report, (ECF No. 70), is ADOPTED in its entirety. 28 2. Valenzuela’s Motion for Summary Judgment, (ECF No. 66), is DENIED 2 3:10-cv-1464-GPC-BGS IN PART and GRANTED IN PART. 1 2 3. conference at the earliest opportunity. 3 4 Magistrate Judge Skomal is directed to set a mandatory settlement 4. All parties or their counsel shall also fully comply with the pretrial 5 disclosure requirements of Federal Rule of Civil Procedure 26(a)(3) on or 6 before September 19, 2014. Failure to comply with these disclosures 7 requirements could result in evidence preclusion or other sanctions 8 under Federal Rule of Civil Procedure 37; 9 5. The parties or their counsel shall meet together and take the action 10 required by Local Rule 16.1(f)(4) on or before September 26, 2014. At 11 this meeting, the parties or their counsel shall discuss and attempt to enter 12 into stipulations and agreements resulting in simplification of the triable 13 issues. The parties or their counsel shall exchange copies and/or display 14 all exhibits other than those to be used for impeachment. The exhibits 15 shall be prepared in accordance with Local Rule 16.1(f)(4)(c). The parties 16 or their counsel shall note any objections they have to any other party’s 17 pretrial disclosures under Fed. R. Civ. P. 26(a)(3). The parties and their 18 counsel shall cooperate in the preparation of the proposed pretrial 19 conference order. 20 arranging these meetings. 21 6. Counsel for Defendants shall have the duty of Counsel for Defendants shall be responsible for arranging the meetings 22 and preparing the proposed pretrial order required by Local Rule 23 16.1(f)(6). On or before October 3, 2014, defense counsel must provide 24 Plaintiff or his counsel with the proposed pretrial order for review and 25 approval. Plaintiff or his counsel must communicate promptly with 26 defense counsel concerning any objections to form or content of the 27 proposed order, and both parties shall attempt to promptly resolve their 28 differences, if any, concerning the proposed order. 3 3:10-cv-1464-GPC-BGS 1 7. The proposed pretrial order, including objections to any other party’s 2 Federal Rule 26(a)(3) pretrial disclosures shall be prepared, served, and 3 lodged with the undersigned’s chambers on or before October 10, 2014, 4 and shall be in the form prescribed in, and comply with, Local 5 Rule 16.1(f)(6). 6 8. The final pretrial conference shall be held before the undersigned on 7 October 17, 2014, at 1:30 p.m. Defense counsel shall be responsible for 8 coordinating Plaintiff’s telephonic appearance at the final pretrial 9 conference. 10 9. Dates for motions in limine and trial will be set at the final pretrial 11 conference. 12 DATED: July 15, 2014 13 14 HON. GONZALO P. CURIEL United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 3:10-cv-1464-GPC-BGS

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