Davis v. Robinson et al

Filing 42

ORDER adopting ECF No. 41 Report and Recommendation in its entirety. ECF Nos. 35 and 37 Motions for Summary Judgment are denied. Signed by Judge Miranda M. Du on 12/15/2017. (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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RODNEY DAVIS,

Case No. 3:15-cv-00607-MMD-VPC
Plaintiff,

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v.

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE
VALERIE P. COOKE

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ROBINSON, et al.,
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Defendants.
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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Valerie P. Cooke (ECF No. 41) (“R&R”) relating to Defendants’ motion for

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summary judgment (ECF No. 35), plaintiff’s cross-motion for summary judgement and

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opposition to defendants’ motion for summary judgment (ECF No. 37) and defendants’

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reply (ECF No. 40). The Magistrate Judge recommends denial of both parties’ motions.

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(ECF No. 41.) The parties had until November 21, 2017, to object to the R&R. To date,

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no objection has been filed.

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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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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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recommended that the parties’ motions on the single claim for Eighth Amendment

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excessive force be denied because a genuine issue of material fact exists as to whether

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the force used was excessive. Upon reviewing the R&R and the parties’ briefs, this Court

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agrees with the Magistrate Judge and will therefore adopt the Magistrate Judge’s R&R in

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full.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 41) is accepted and

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adopted in its entirety.

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It is ordered that defendants’ motion for summary judgement (ECF No. 35) is
denied.
It is further ordered that plaintiff’s cross-motion for summary judgment (ECF No.
37) is denied.
DATED THIS 15th day of December 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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