Flores v. State of Nevada in rel. The Nevada Department of Corrections et al

Filing 46

ORDER - The court accepts and adopts, in part, the magistrate judge'sn 39 Report and recommendation: P's # 26 Motion to strike is therefore DENIED; and D's # 12 Motion for summary judgment is GRANTED based on a failure to show tha t defendant McDaniel personally participated in the alleged constitutional violations. The court declines to address the remaining issues raised in D's motion for summary judgment. Signed by Judge Howard D. McKibben on 3/15/2012. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SAMUEL FLORES,

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Plaintiff,
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v.
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STATE OF NEVADA, IN RELATION TO )
THE NEVADA DEPARTMENT OF
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CORRECTIONS, et al.,
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Defendants.
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_________________________________ )

3:11-cv-00236-HDM-VPC

ORDER

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Before the court is the report and recommendation of the
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United States Magistrate Judge (#39) filed on February 7, 2012.

In

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the report and recommendation, the magistrate judge recommends that
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this court enter an order denying the plaintiff’s motion to strike
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(#26)and an order granting the defendant’s motion for summary
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judgment (#12).

Plaintiff objected to the magistrate judge’s

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report and recommendation (#40), defendant responded (#43) and
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plaintiff replied (#44).

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and memoranda of the parties and other relevant matters of record.

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It has made a review and determination in accordance with the

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requirements of 28 U.S.C. § 636 and applicable case law.

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Accordingly:

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The court has considered the pleadings

The court accepts and adopts the magistrate judge’s report and
recommendation that plaintiff’s motion to strike be denied.
Furthermore, the court accepts and adopts, in part, the
magistrate judge’s report and recommendation that defendant’s

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motion for summary judgment be granted.1

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held that under section 1983, a plaintiff must demonstrate that the

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defendant personally participated in the deprivation of his

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constitutional rights.

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Cir. 2002).

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raise a genuine issue of material fact as to whether defendant

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McDaniel personally participated in the alleged constitutional

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violations, encouraged the alleged violations, authorized the

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alleged violations, knew of the alleged violations and failed to

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act to prevent them, or implemented a policy that was so deficient

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that the policy itself was a constitutional violation or a moving

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force of the alleged constitutional violations.

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Black, 885 F.2d 642, 646 (9th Cir. 1989).

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The Ninth Circuit has

Jones v. Williams, 297 F.3d 930, 934 (9th

The court concludes that the plaintiff has failed to

See Hansen v.

Based on this review, and for good cause appearing, the court

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hereby accepts and adopts that portion of the report and

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recommendation of the magistrate judge on the grounds set forth

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The court notes an error at page 5, line 24 of the magistrate judge’s report
and recommendation.
That line reads: “Here, the plaintiff does not oppose the
defendants’ motion for summary judgment.”
Plaintiff, however, did oppose
defendant’s motion for summary judgment (#20).

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above.

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The defendant’s motion for summary judgment (#12) is GRANTED based

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on a failure to show that defendant McDaniel personally

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participated in the alleged constitutional violations.

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declines to address the remaining issues raised in defendant’s

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motion for summary judgment.

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IT IS SO ORDERED.

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DATED: This 15th day of March, 2012.

The plaintiff’s motion to strike (#26) is therefore DENIED.

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____________________________
UNITED STATES DISTRICT JUDGE

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The court