Mizzoni v. State of Nevada ex rel Nevada Department of Corrections et al

Filing 52

ORDER - The court hereby adopts and modifies the # 27 Report and recommendation as follows: D Dr. Robert Bannister's # 14 Motion to dismiss for failure to state a claim is DENIED; D McDaniel's # 14 Motion to dismiss for failure to s tate a claim is GRANTED WITH LEAVE TO AMEND; D Bannister's # 14 Motion to dismiss on qualified immunity grounds is DENIED; D Bannister's # 14 Motion to dismiss P's official capacity claim for monetary damages is GRANTED; Finally, the magistrate judge's recommendation that D Dr. Kent Robertson, improperly named as Mr. Robinson, be dismissed pursuant to Rule 4(m) is DENIED. The court granted P's oral application to amend the complaint to correct the spelling of D Robertson's name. (#50) Signed by Judge Howard D. McKibben on 8/23/2012. (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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JOSEPH MIZZONI,

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Plaintiff,
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vs.
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STATE OF NEVADA, et al.,
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Defendants.
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_________________________________ )

3:11-cv-00358-HDM-WGC

ORDER

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Before the court is the report and recommendation of the
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United States Magistrate Judge (#27).

In the report and

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recommendation, the magistrate judge recommends that this court
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enter an order granting in part and denying in part, the
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defendants’ motion to dismiss (#14).

Both plaintiff and defendants

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objected (## 28, 29).
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The court has considered the pleadings and memoranda of the
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parties and other relevant matters of record.

It has made a review

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and determination in accordance with the requirements of 28 U.S.C.
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§ 636 and applicable case law.

Based on this review, the court

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hereby adopts and modifies the report and recommendation as

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follows:

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Defendant Dr. Robert Bannister’s motion to dismiss for failure
to state a claim is DENIED;
Defendant E.K. McDaniel’s motion to dismiss for failure to
state a claim is GRANTED WITH LEAVE TO AMEND;
Defendant Bannister’s motion to dismiss on qualified immunity
grounds is DENIED;
Defendant Bannister’s motion to dismiss plaintiff’s official
capacity claim for monetary damages is GRANTED;

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Finally, the magistrate judge’s recommendation that defendant

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Dr. Kent Robertson, improperly named as Mr. Robinson, be dismissed

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pursuant to Rule 4(m) is DENIED.

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oral application to amend the complaint to correct the spelling of

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defendant Robertson’s name. (#50).

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with a copy of the summons and the complaint, and has accepted

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service and filed an answer (#48).

The court granted the plaintiff’s

Defendant Robertson was served

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IT IS SO ORDERED.

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DATED: This 23rd day of August, 2012.

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____________________________
UNITED STATES DISTRICT JUDGE

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