Fernandez v. Baker et al

Filing 392

AMENDED ORDER ACCEPTING AND ADOPTING AMENDED REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE ECF No. 387 in its entirety; ECF No. 342 Defendants' motion for summary judgment is granted in part and denied in part; ECF No. 370 Defendants' motion to seal certain exhibits is granted. Signed by Judge Miranda M. Du on 2/21/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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KEVIN FERNANDEZ,1

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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AMENDED 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.2

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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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previous Order (ECF No. 388) incorrectly reflected Plaintiff’s name as Kevin
Hernandez. This order corrects that error.
2Plaintiff 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.)
1The

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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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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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It is further ordered that Defendants’ motion to seal certain exhibits containing
Plaintiff’s medical records (ECF No. 370) is granted.
DATED THIS 21st day of February 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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