Fernandez v. Baker et al

Filing 388

ORDER that ECF No. 387 Amended R&R is accepted and adopted in its entirety; ECF No. 342 Defendants' motion for summary judgment is granted in part and denied in part; and ECF No. 370 Defendants' motion to seal certain exhibits is granted. Signed by Judge Miranda M. Du on 2/8/2018. (Copies have been distributed pursuant to the NEF - LH)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 KEVIN HERNANDEZ, Case No. 3:14-cv-00578-MMD-VPC Plaintiff, 10 v. 11 JAMES GREG COX, et al., 12 ORDER ACCEPTING AND ADOPTING AMENDED REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE Defendants. 13 14 Before the Court is the Amended Report and Recommendation of United States 15 Magistrate Judge Valerie P. Cooke (ECF No. 387) (“R&R”) relating to defendants’ motion 16 for summary judgment (“Motion”) (ECF No. 342, 344 (sealed)). The Magistrate Judge 17 recommends granting the Motion in part and denying it in part. Plaintiff had until January 18 22, 2018, to object to the R&R. To date, no objection has been filed.1 19 This Court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 21 timely objects to a magistrate judge’s report and recommendation, then the court is 22 required to “make a de novo determination of those portions of the [report and 23 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 24 to object, however, the court is not required to conduct “any review at all . . . of any issue 25 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 26 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 27 28 1Plaintiff had objected to the original Report and Recommendation, asking the Magistrate Judge to correct an apparent clerical error. (ECF No. 385.) The R&R was amended to correct the clerical error. (ECF No. 387 at 1 n. 1.) 1 magistrate judge’s report and recommendation where no objections have been filed. See 2 United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 3 of review employed by the district court when reviewing a report and recommendation to 4 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 5 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 6 view that district courts are not required to review “any issue that is not the subject of an 7 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 8 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 9 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 10 which no objection was filed). 11 Nevertheless, this Court finds it appropriate to engage in a de novo review to 12 determine whether to adopt Magistrate Judge Cooke’s R&R. The Magistrate Judge 13 recommends granting Defendants’ Motion as to Plaintiff’s state law claims against 14 Defendants in their official capacity and denying as to Plaintiff’s remaining claims. Upon 15 reviewing the R&R and underlying briefs, this Court finds good cause to adopt the 16 Magistrate Judge’s R&R in full. It 17 is therefore ordered, adjudged and decreed that the Report and 18 Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 387) is accepted and 19 adopted in its entirety. 20 It is ordered Defendants’ motion for summary judgment (ECF No. 342) is granted 21 as to Plaintiff’s state law claims against Defendants in their official capacity, including 22 any claims where Plaintiff seeks to hold the State of Nevada or the Nevada Department 23 of Corrections liable for Defendants’ alleged conduct. It is further ordered that Defendants’ motion for summary judgment (ECF No. 342) 24 25 is denied as to Plaintiff’s remaining claims. 26 /// 27 /// 28 /// 2 1 It is further ordered that Defendants’ motion to seal certain exhibits containing 2 Plaintiff’s medical records (ECF No. 370) is granted. 3 DATED THIS 8th day of February 2018. 4 5 6 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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