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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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KEVIN HERNANDEZ,

Case No. 3:14-cv-00578-MMD-VPC
Plaintiff,

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v.
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JAMES GREG COX, et al.,
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ORDER ACCEPTING AND ADOPTING
AMENDED REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
VALERIE P. COOKE

Defendants.
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Before the Court is the Amended Report and Recommendation of United States

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Magistrate Judge Valerie P. Cooke (ECF No. 387) (“R&R”) relating to defendants’ motion

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for summary judgment (“Motion”) (ECF No. 342, 344 (sealed)). The Magistrate Judge

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recommends granting the Motion in part and denying it in part. Plaintiff had until January

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22, 2018, to object to the R&R. To date, no objection has been filed.1

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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 judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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

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

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to object, however, the court is not required to conduct “any review at all . . . of any issue

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Indeed, the Ninth Circuit has recognized that a district court is not required to review a

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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.)

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magistrate judge’s report and recommendation where no objections have been filed. See

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United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard

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of review employed by the district court when reviewing a report and recommendation to

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which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

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view that 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 Cooke’s R&R. The Magistrate Judge

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recommends granting Defendants’ Motion as to Plaintiff’s state law claims against

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Defendants in their official capacity and denying as to Plaintiff’s remaining claims. Upon

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reviewing the R&R and underlying briefs, this Court finds good cause to adopt the

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Magistrate Judge’s R&R in full.
It

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is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 387) is accepted and

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adopted in its entirety.

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It is ordered Defendants’ motion for summary judgment (ECF No. 342) is granted

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as to Plaintiff’s state law claims against Defendants in their official capacity, including

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any claims where Plaintiff seeks to hold the State of Nevada or the Nevada Department

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of Corrections liable for Defendants’ alleged conduct.
It is further ordered that Defendants’ motion for summary judgment (ECF No. 342)

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is denied as to Plaintiff’s remaining claims.

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///

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///

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///
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It is further ordered that Defendants’ motion to seal certain exhibits containing

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Plaintiff’s medical records (ECF No. 370) is granted.

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DATED THIS 8th day of February 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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