Carney v. Ford et al

Filing 51

ORDER ADOPTING REPORT AND RECOMMENDATIONS It is hereby ORDERED: The Report and Recommendation (Dkt. 50 ) shall be INCORPORATED by reference and ADOPTED in its entirety. Defendants' Motion to Dismiss Plaintiff's State Law Claims Pursuant to Idaho Code § 6-610 (Dkt. 28 ) is DENIED. Defendants' Motion to Dismiss Pursuant to IRCP 12(b)(6) or in the Alternative Motion for More Definite Statement Pursuant to IRCP 12(e) (Dkt. [36)] is DENIED AS MOOT. Plaintiff's Motion to Dis miss Defendant Thomas Watkins (Dkt. 39 ) is DENIED AS MOOT. Plaintiff's Motion to Dismiss Defendant Kevin Kinnaman and Mark Ford (Dkt. 40 ) is GRANTED. Plaintiff's Motion to Dismiss Defendants Kevin Borger, Valerie Gragg and Robert Luce (D kt. 42 ) is GRANTED. Meridian City Defendants' Motion for Summary Judgment (Dkt. 46 ) is GRANTED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

GARRY SEITZ CARNEY,
Plaintiff,

Case No. 1:15-CV-00167-EJL-REB
ORDER ADOPTING REPORT AND
RECOMMENDATION

v.
MERIDIAN POLICE OFFICER TONY
FORD (#3081), MERIDIAN POLICE
OFFICER KEVIN KINNAMAN,
MERIDIAN POLICE SGT. MARK
FORD (#3124), MAGISTRATE
DANIEL STECKEL, MAGISTRATE
THOMAS WATKINS, BOISE CITY
ATTORNEY ROBERT B. LUCE,
DEPUTY CITY ATTORNEY ADAM
DINGELDEIN, ASSISTANT CITY
ATTORNEY KEVIN S. BORGER,
ASSISTANT CITY ATTORNEY
VALERIE H. GRAGG,
Defendants.

The United States Magistrate Judge issued a Report and Recommendation (Dkt. 50)
in this matter. Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days in which to
file written objections to the Report and Recommendation. No objections were filed by the
parties and the time for doing so has passed.

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court Amay accept, reject, or modify, in
whole or in part, the findings and recommendations made by the magistrate judge.@
Where the parties object to a report and recommendation, this Court Ashall make a de novo
determination of those portions of the report which objection is made.@ Id. Where,
however, no objections are filed the district court need not conduct a de novo review. In
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted
the requirements of 28 U.S.C. § 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge
must review the magistrate judge's findings and recommendations de novo if
objection is made, but not otherwise. As the Peretz Court instructed, Ato the
extent de novo review is required to satisfy Article III concerns, it need not
be exercised unless requested by the parties.@ Peretz, 501 U.S. at 939
(internal citation omitted). Neither the Constitution nor the statute requires a
district judge to review, de novo, findings and recommendations that the
parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 (AAbsent
an objection or request for review by the defendant, the district court was not
required to engage in any more formal review of the plea proceeding.@); see
also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required
for Article III purposes unless requested by the parties) . . . .
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Furthermore, to the
extent that no objections are made, arguments to the contrary are waived. See Fed. R. Civ.
P. 72; 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen
days of service of the Report and Recommendation). AWhen no timely objection is filed,
the Court need only satisfy itself that there is no clear error on the face of the record in

ORDER ADOPTING REPORT AND RECOMMENDATION - 2

order to accept the recommendation.@ Advisory Committee Notes to Fed. R. Civ. P. 72
(citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir.1974)).
In this case, no objections were filed so the Court is not required to conduct a de
novo determination of the Report and Recommendation. The Court has, however, reviewed
the Report and Recommendation and the record in this matter and finds no clear error on
the face of the record. Moreover, the Court finds the Report and Recommendation is
well-founded in the law based on the facts of this particular case and this Court is in
agreement with the same.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1. The Report and Recommendation (Dkt. 50) shall be INCORPORATED by
reference and ADOPTED in its entirety.
2. Defendants’ Motion to Dismiss Plaintiff’s State Law Claims Pursuant to Idaho
Code § 6-610 (Dkt. 28) is DENIED.
3. Defendants’ Motion to Dismiss Pursuant to IRCP 12(b)(6) or in the Alternative
Motion for More Definite Statement Pursuant to IRCP 12(e) (Dkt. 36) is
DENIED AS MOOT.
4. Plaintiff’s Motion to Dismiss Defendant Thomas Watkins (Dkt. 39) is DENIED
AS MOOT.
5. Plaintiff’s Motion to Dismiss Defendant Kevin Kinnaman and Mark Ford (Dkt.
40) is GRANTED.
ORDER ADOPTING REPORT AND RECOMMENDATION - 3

6. Plaintiff’s Motion to Dismiss Defendants Kevin Borger, Valerie Gragg and
Robert Luce (Dkt. 42) is GRANTED.
7. Meridian City Defendants’ Motion for Summary Judgment (Dkt. 46) is
GRANTED.

DATED: September 19, 2016

_________________________
Edward J. Lodge
United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 4