Koerner v. Cox et al

Filing 34

ORDER. IT IS HEREBY ORDERED that the 32 Magistrate Judge's Report and Recommendation is adopted and accepted, and Defendant's 19 Motion to Dismiss is GRANTED in part and DENIED in part as follow: (1) Defendants' motion to d ismiss Defendants in their official capacities based on Eleventh Amendment immunity should be GRANTED, and Plaintiff's monetary damages claims against Defendants in their official capacities should be DISMISSED with prejudice; and (2) Defendants' motion to dismiss based on Plaintiff's failure to state a claim, Defendants' lack of personal participation, and qualified should be DENIED without prejudice. Signed by Judge Larry R. Hicks on 1/10/2012. (Copies have been distributed pursuant to the NEF - KO)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

*****

9
10
11
12
13

KELLY KOERNER,

)
)
Plaintiff,
)
)
v.
)
)
JAMES GREG COX, et al.,
)
)
Defendants.
)
_____________________________________ )

3:11-cv-00116-LRH-VPC
ORDER

14
15

Before this Court is the Report and Recommendation of U.S. Magistrate Judge Valerie P.

16

Cooke (#321) entered on December 8, 2011, recommending granting in part and denying in part

17

Defendants’ Motion to Dismiss (#19) filed on July 12, 2011. Plaintiff filed his Non Objection to

18

Magistrate Judge’s Report and Recommendation (#33) on December 20, 2011. Defendants did not file

19

a reply. The action was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)B and the

20

Local Rules of Practice, LR IB 1-4.

21

The Court has conducted its de novo review in this case, has fully considered the non objection

22

of the Plaintiff, the pleadings and memoranda of the parties and other relevant matters of record

23

pursuant to 28 U.S.C. § 636 (b) (1) (B) and Local Rule IB 3-2. The Court determines that the

24

Magistrate Judge’s Report and Recommendation (#32) entered on December 8, 2011, should be

25
26

1

Refers to court’s docket number.

1

adopted and accepted.

2

IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and Recommendation (#32)

3

entered on December 8, 2011, is adopted and accepted, and Defendant’s Motion to Dismiss (#19) is

4

GRANTED in part and DENIED in part as follow:

5

1. Defendants’ motion to dismiss Defendants in their official capacities based on Eleventh

6

Amendment immunity should be GRANTED, and Plaintiff’s monetary damages claims

7

against Defendants in their official capacities should be DISMISSED with prejudice; and

8

2. Defendants’ motion to dismiss based on Plaintiff’s failure to state a claim, Defendants’ lack

9

of personal participation, and qualified immunity should be DENIED without prejudice.

10
11

IT IS SO ORDERED.

12

DATED this 10th day of January, 2012.

13
14
15

_______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26

2