Sonntag v. Gurres et al

Filing 197

ORDER adopting 193 Report and Recommendation and denying 178 Motion for Clarification, 181 Motion to Vacate, and 189 Motion for Summary Judgment. Signed by Chief Judge Robert C. Jones on 8/30/13. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF NEVADA

6
JASON ERIC SONNTAG,
7
Plaintiff,
8
vs.
9
GURRES et al.,
10
Defendants.
11
12

)
)
)
)
)
)
)
)
)
)

3:09-cv-00637-RCJ-VPC
ORDER

This is a (former) prisoner civil rights case arising out of alleged excessive force.

13 Plaintiff has filed three motions. First, Plaintiff has asked the Court to clarify that the Fourth
14 Amendment claim remains viable. The Court denies the motion. Certain excessive force claims
15 have survived summary judgment, as noted in previous orders. But it is the Eighth Amendment,
16 not the Fourth Amendment, that governs claims of excessive force used against prisoners serving
17 sentences pursuant to conviction. Graham v. Connor, 490 U.S. 386, 394 (1989) (citing Tennessee
18 v. Garner, 471 U.S. 1, 7–22 (1985); Whitley v. Albers, 475 U.S. 312, 318–26 (1986)).
19

Second, Plaintiff appears to complain of the magistrate judge’s participation in the case at

20 all, because he has refused to waive his right to a district court judge. The Court denies the
21 motion. Plaintiff is entitled to a district court judge for trial and certain other critical matters, but
22 the district court may lawfully refer to a magistrate judge certain non-dispositive matters. See 28
23 U.S.C. § 636. Plaintiff may object to the district judge any particular rulings by the magistrate
24 judge. See Fed. R. Civ. P. 72(a). The waiver form Plaintiff refers to in his motion is a form
25 whereby a litigant may agree to have the magistrate judge determine all matters, including

1 conducting the trial. The participation of the magistrate judge to the extent permitted under
2 § 636 need not be assented to by the parties.
3

Third, Plaintiff has moved for offensive summary judgment on his remaining claims. The

4 magistrate judge has issued a Report and Recommendation (“R&R”) recommending denying the
5 motion for untimeliness and for failure to satisfy the initial burden to show there is no genuine
6 issue of material fact for trial. The Court agrees on both grounds.
7

Finally, the Court notes that it will not tolerate one more insult directed towards the Court

8 by Plaintiff, such as the statement in his Objection to the R&R that the magistrate judge “must be
9 suffering from amnesia” and that she should be held in contempt. The Court can understand that
10 Plaintiff is upset about the wrongs he perceives himself to have suffered, but if he wishes to
11 participate in civil society, he must learn to channel his outrage appropriately. Plaintiff will have
12 his trial if he properly prosecutes it, but not if he continues to show contempt for the Court and
13 its officers. The Court will order Plaintiff to show cause why he should not be held in contempt
14 at the next hint of disrespect.
15
16

CONCLUSION
IT IS HEREBY ORDERED that the Motion for Clarification (ECF No. 178), the Motion

17 to Vacate (ECF No. 181), and the Motion for Summary Judgment (ECF No. 189) are DENIED.
18

IT IS FURTHER ORDERED that the Report and Recommendation (ECF No. 193) is

19 ADOPTED.
20

IT IS SO ORDERED.

21 Dated this 14th day of of August, 2013.
Dated this 30th day August, 2013.
22
23

_____________________________________
ROBERT C. JONES
United States District Judge

24
25
Page 2 of 2