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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ROBERT DOUGLAS,

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Plaintiff,
v.

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MICHAEL SMELOSKY, Warden, et
al.,

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Defendants.

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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

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On August 6, 2012, Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983,

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alleging Defendants violated Plaintiff’s Eighth Amendment right to be free from cruel

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and unusual punishment when Plaintiff was forced to stand bare-chested against a hot

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wall and then locked in a hot, unventilated van. (ECF No. 1.) The case was assigned

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to Magistrate Judge Skomal for disposition on report and recommendation.

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Only Plaintiff’s claim against defendant Valenzuela in his individual capacity

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remains. (See ECF No. 18.) On January 30, 2014, Valenzuela filed a motion for

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summary judgment, (ECF No. 66), which Plaintiff opposed on March 28, 2014, (ECF

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No. 69).
3:10-cv-1464-GPC-BGS

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On June 19, 2014, Magistrate Judge Skomal issued a report and recommendation

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(“Report”), recommending that Valenzuela’s Motion for Summary Judgment be denied

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in part and granted in part—denied as to Plaintiff’s claim that he was locked in a hot,

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unventilated van and granted as to Plaintiff’s claim that he was forced to stand bare-

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chested against a hot wall. (ECF No. 70.) Magistrate Judge Skomal set a deadline of

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July 7, 2014, to file any objections to the Report. To date, the Court has received no

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objections to the Report.

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A district judge’s role in reviewing a magistrate judge’s report and

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recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, a district

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judge “shall make a de novo determination of those portions of the report . . . to which

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objection is made,” and “may accept, reject, or modify, in whole or in part, the findings

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or recommendations made by the magistrate [judge].” When no objections are filed,

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the Court may assume the correctness of the magistrate judge’s findings of fact and

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decide the motion on the applicable law. Campbell v. United States Dist. Ct., 501 F.2d

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196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal.

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2001). Under such circumstances, the Ninth Circuit has held that “a failure to file

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objections only relieves the trial court of its burden to give de novo review to factual

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findings; conclusions of law must still be reviewed de novo.” Barilla v. Ervin, 886

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F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708

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F.2d 452, 454 (9th Cir. 1983)).

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Because no objections to the Report have been filed, the Court assumes the

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correctness of Magistrate Judge Skomal’s factual findings and adopts them in full. The

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Court has conducted a de novo review of Magistrate Judge Skomal’s legal conclusions

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and finds the Report provides a cogent analysis of Valenzuela’s Motion for Summary

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Judgment.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The Report, (ECF No. 70), is ADOPTED in its entirety.

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2.

Valenzuela’s Motion for Summary Judgment, (ECF No. 66), is DENIED
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3:10-cv-1464-GPC-BGS

IN PART and GRANTED IN PART.

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conference at the earliest opportunity.

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Magistrate Judge Skomal is directed to set a mandatory settlement

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All parties or their counsel shall also fully comply with the pretrial

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disclosure requirements of Federal Rule of Civil Procedure 26(a)(3) on or

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before September 19, 2014. Failure to comply with these disclosures

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requirements could result in evidence preclusion or other sanctions

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under Federal Rule of Civil Procedure 37;

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The parties or their counsel shall meet together and take the action

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required by Local Rule 16.1(f)(4) on or before September 26, 2014. At

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this meeting, the parties or their counsel shall discuss and attempt to enter

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into stipulations and agreements resulting in simplification of the triable

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issues. The parties or their counsel shall exchange copies and/or display

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all exhibits other than those to be used for impeachment. The exhibits

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shall be prepared in accordance with Local Rule 16.1(f)(4)(c). The parties

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or their counsel shall note any objections they have to any other party’s

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pretrial disclosures under Fed. R. Civ. P. 26(a)(3). The parties and their

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counsel shall cooperate in the preparation of the proposed pretrial

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conference order.

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arranging these meetings.

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Counsel for Defendants shall have the duty of

Counsel for Defendants shall be responsible for arranging the meetings

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and preparing the proposed pretrial order required by Local Rule

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16.1(f)(6). On or before October 3, 2014, defense counsel must provide

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Plaintiff or his counsel with the proposed pretrial order for review and

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approval. Plaintiff or his counsel must communicate promptly with

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defense counsel concerning any objections to form or content of the

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proposed order, and both parties shall attempt to promptly resolve their

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differences, if any, concerning the proposed order.
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3:10-cv-1464-GPC-BGS

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The proposed pretrial order, including objections to any other party’s

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Federal Rule 26(a)(3) pretrial disclosures shall be prepared, served, and

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lodged with the undersigned’s chambers on or before October 10, 2014,

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and shall be in the form prescribed in, and comply with, Local

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Rule 16.1(f)(6).

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The final pretrial conference shall be held before the undersigned on

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October 17, 2014, at 1:30 p.m. Defense counsel shall be responsible for

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coordinating Plaintiff’s telephonic appearance at the final pretrial

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conference.

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Dates for motions in limine and trial will be set at the final pretrial

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conference.

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DATED: July 15, 2014

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HON. GONZALO P. CURIEL
United States District Judge

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3:10-cv-1464-GPC-BGS