Robinson v. Baca et al

Filing 62

ORDER re 61 Objection filed by Jermaine Robinson : After fully considering the P's objections and considering the pleadings and memoranda of the parties and other relevant matters of record in accordance with the requirements of 28 U.S.C.
67; 636 and applicable law, the court hereby reaffirms its # 59 Order dated September 15, 2010 adopting and accepting the report and recommendation of the United States Magistrate Judge. Signed by Judge Howard D. McKibben on 9/20/2010. (Copies have been distributed pursuant to the NEF - DRM)

Robinson v. Baca et al

Doc. 62

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 The plaintiff has filed objections to the report and 18 recommendation of the United States Magistrate Judge (#58), which 19 were received by the court after it filed its order adopting the 20 report and recommendation. 21 plaintiff's objections, and hereby reaffirms its order adopting and 22 accepting the magistrate judge's report and recommendation. 23 court notes the following in response to the plaintiff's 24 objections. 25 First, plaintiff asserts that the report and recommendation 26 contains erroneous statements. 27 plaintiff were not material to the court's determination. 28 1
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UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

JERMAINE ROBINSON,

) ) Plaintiff, ) ) vs. ) ) JAMES BACA, et al., ) ) Defendants. ) _________________________________ )

3:08-cv-00389-HDM-VPC ORDER

The court has considered the

The

Those statements identified by the

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Second, plaintiff asserts a factual dispute exists as to whether he was treated weekly after his injury. Whether plaintiff

was treated weekly was not material to the court's determination. Instead, the court's finding that defendants did not exhibit deliberate indifference to plaintiff's serious medical needs was based the frequent treatment of plaintiff's injury, not necessarily on its weekly occurrence. Third, the plaintiff asserts that the magistrate judge makes findings of fact with respect to his Equal Protection claim. The

plaintiff does not identify what findings of fact were made, nor can the court ascertain any from the report. Rather, the magistrate judge simply recommends sua sponte dismissal of this cause of action for failure to state a claim. Fourth, with respect to his state law claims plaintiff asserts that the court should either exercise supplemental jurisdiction or remand them to state court. The court reaffirms its decision

declining to exercise supplemental jurisdiction over the state law claims. Moreover, as this case was originally filed in federal

court, the state causes of action cannot be remanded to the state court. Fifth, plaintiff asserts the magistrate judge did not address his Fed. R. Civ. P. 56(f) argument. While true, the court did

address this aspect of plaintiff's opposition in its order adopting the report and recommendation. Finally, the plaintiff asserts that the magistrate judge failed to address the immunity arguments. The report and

recommendation does address Eleventh Amendment immunity, and the court is not required to reach qualified immunity as plaintiff has 2

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not proven a constitutional violation. The remainder of plaintiff's objections are vague and conclusory, especially regarding his conspiracy claim. Accordingly, after fully considering the plaintiff's objections and considering the pleadings and memoranda of the parties and other relevant matters of record in accordance with the requirements of 28 U.S.C. § 636 and applicable law, the court hereby reaffirms its order dated September 15, 2010 (#59) adopting and accepting the report and recommendation of the United States Magistrate Judge. IT IS SO ORDERED. DATED: This 20th day of September, 2010.

____________________________ UNITED STATES DISTRICT JUDGE

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