Stevens v. Palmer

Filing 67

ORDERED that no action is taken upon the # 59 Report and Recommendation at this time and this matter is recommitted to the Magistrate Judge to determine whether the supplemental evidence offered by Defendant Corzine should be considered in this matter and whether it may have any effect upon the Magistrate Judge's Report and Recommendation. FURTHER ORDERED that this matter may be considered in conjunction with any motion for summary judgment filed on behalf of Defendant Rexwinkle. Signed by Judge Larry R. Hicks on 9/25/2013. (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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*****

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COUNTRY JOE STEVENS,

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Plaintiff,
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v.
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ALYSON JUNGEN, et al.,
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Defendants.
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_____________________________________ )

3:11-cv-00558-LRH-VPC
ORDER

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

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Cooke (#591) entered on August 15, 2013, recommending denying Defendants’ Motion for Summary

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Judgment (#48) filed on January 14, 2013.

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Recommendation by U.S. Magistrate Judge (#60) on August 22, 2013, and Defendants filed their

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Objections to Magistrate Judge’s Report and Recommendation #59 (#61) on September 3, 2013.

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Plaintiff filed his Opposition to Defendants’ Objection (#63) on September 5, 2013

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Plaintiff filed his Non-Objection to Report and

This action was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
Rule 1B 1-4 of the Rules of Practice of the United States District Court for the District of Nevada.

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

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of Plaintiff, the objections of Defendants, Plaintiff’s Opposition to Defendants’ Objections, the

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Refers to court’s docket number.

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pleadings and memoranda of the parties and other relevant matters of record pursuant to 28 U.S.C. §

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636 (b) (1) (B) and Local Rule IB 3-2. The Court determines that the Magistrate Judge’s Report and

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Recommendation (#59) entered on August 15, 2013, should be recommitted to the Magistrate for the

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following reasons:

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In Defendant Kenneth Corzine’s objection to the Magistrate Judge’s Report and

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Recommendation (#59), the defendant supplements previous evidence (exhibits to #48) with new

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evidence, a declaration set forth in Exhibit A to Defendant’s objection. The Court’s view is that this

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evidence definitely should have been submitted to the Magistrate Judge in support of the Defendants’

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Motion for Summary Judgment (#48) and good cause has not been shown for its omission; however,

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the declaration is material to the Magistrate Judge’s findings and relates to other evidence which was

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before the Magistrate. Recommittal is therefore warranted. 28 U.S.C. § 636(b)(1)(C); United States

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vs. Howell, 231 F.3d 615, 621-22 (9th Cir. 2000).

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Additionally, it appears that Defendant Rexwinkle was granted time by the Magistrate Judge

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to refile a motion for summary judgment, and that matter is readily combined with the Corzine matter

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referenced herein.

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Good cause appearing, no action is taken upon the Magistrate Judge’s Report and

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Recommendation (#59) at this time and this matter is recommitted to the Magistrate Judge to determine

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whether the supplemental evidence offered by Defendant Corzine should be considered in this matter

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and whether it may have any effect upon the Magistrate Judge’s Report and Recommendation.

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IT IS FURTHER ORDERED that this matter may be considered in conjunction with any
motion for summary judgment filed on behalf of Defendant Rexwinkle.

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IT IS SO ORDERED.

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DATED this 25th day of September, 2013.

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_______________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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