Toavs v. Bannister et al

Filing 18

ORDER ACCEPTING AND ADOPTING in its entirety 17 Report and Recommendation; DENYING Plaintiff's 3 Motion for Preliminary Injunction. Signed by Judge Miranda M. Du on 05/16/2013. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BERTON G. TOAVS,

Case No. 3:12-cv-00449-MMD-WGC
Plaintiff,

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ORDER ACCEPTING REPORT AND
RECOMMENDATION

v.
ROBERT BANNISTER, et al.,
Defendants.

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge William G. Cobb (dkt. no. 17) (“Recommendation”) relating to Plaintiff Berton G.

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Toavs’ Motion for Preliminary Injunction

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Recommendation has been filed.

(dkt. no. 3). No objection to the

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Where a party timely

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objects to a magistrate judge’s report and recommendation, the Court is required to

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“make a de novo determination of those portions of the [report and recommendation] to

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which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails to object, however,

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the court is not required to conduct “any review at all . . . of any issue that is not the

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subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth

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Circuit has recognized that a district court is not required to review a magistrate judge’s

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report and recommendation where no objections have been filed. See United States v.

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Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

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Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that

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district courts are not required to review “any issue that is not the subject of an

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objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

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Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

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which no objection was filed).

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Nevertheless, this Court finds it appropriate to engage in a de novo review to

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determine whether to adopt Magistrate Judge Cobb’s Recommendation. Plaintiff’s

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medical history does not reveal any documented instances of deliberate indifference on

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the part of Defendants. On the contrary, his medical care appears to have been

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adequate and timely. Although he alleges that Defendants have withheld relevant

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information, Judge Cobb correctly ruled that this bare assertion without support fails to

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raise any Eighth Amendment concerns. Similarly, Toavs has failed to demonstrate

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irreparable history in the absence of an injunction ruling, relying on speculation without

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documented evidence to support his claim that he risks losing use of his left arm in the

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absence of court intervention. As a result, Toavs fails to satisfy the requirements for the

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Court’s granting of preliminary injunctive relief.

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IT IS THEREFORE ORDERED that the Report and Recommendation of
Magistrate Judge William G. Cobb (dkt. no. 17) be accepted and adopted in its entirety.
IT IS FURTHER ORDERED that Plaintiff Berton G. Toavs’ Motion for Preliminary
Injunction (dkt. no. 3) is DENIED.
DATED THIS 16th day of May 2013.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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