Holden v. State of Nevada et al

Filing 67

ORDER that the reports and recommendations of Magistrate Judge William G. Cobb ECF Nos. 59 , 62 are accepted and adopted; Plaintiff's Motion for Partial Summary Judgment ECF No. 32 isdenied; Defendants' motion to strike ECF No. 51 is granted in part and denied in part; Court will not strike Plaintiff's expert witness disclosure. Signed by Judge Miranda M. Du on 10/20/2017. (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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JIM BASS HOLDEN,

Case No. 3:16-cv-00064-MMD-WGC
Plaintiff,

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v.
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STATE OF NEVADA, ex rel. NEVADA
DEPARTMENT OF CORRECTIONS, et
al.,

ORDER ACCEPTING AND ADOPTING
REPORTS AND RECOMMENDATIONS
OF MAGISTRATE JUDGE
WILLIAM G. COBB

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Defendants.
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Before the Court are two reports and recommendations of United States

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Magistrate Judge William G. Cobb (ECF Nos. 59, 62) (“R&R” or “Recommendation”),

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relating to Plaintiff’s Motion for Partial Summary Judgment (“Plaintiff’s Motion”) (ECF No.

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32) and Defendants’ motion to strike Plaintiff’s proposed expert witness (“Defendants’

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Motion”) (ECF No. 51). The deadlines for objections have expired and the parties have

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not objected.

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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, the 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. The Magistrate

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Judge recommends denying Plaintiff’s Motion, which is based primarily on Defendants’

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failure to identify a rebuttal expert, because the issue of causation of Plaintiff’s skin

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condition is a factual dispute for the jury to resolve. (ECF No. 59.) Upon reviewing the

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Recommendation, Plaintiff’s Motion and the underlying records, the Court agrees with

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the Magistrate Judge’s recommendation to deny summary judgment.

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With respect to Defendant’s Motion, the Magistrate Judge recommends granting it

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in part and denying it in part. (ECF No. 62.) In particular, the Magistrate Judge

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recommends denying the Motion to the extent Defendant seeks to strike Plaintiff’s expert

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witness disclosure on the premise that his disclosure fails to comply with Fed. R. Civ. P.

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26. The Magistrate Judge recommends granting the Motion to the extent it seeks to

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preclude Plaintiff’s expert witness, Noel M. Rowan, M.D., from testifying that deprivation

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of sunscreen was the proximate cause of Plaintiff’s skin condition (basal cell carcinoma)

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under Fed. R. Evid. 702. The Court has reviewed briefs relating to Defendants’ Motion

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and agrees with the R&R.

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///

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

reports and

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recommendations of Magistrate Judge William G. Cobb (ECF Nos. 59, 62) are accepted

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and adopted in its entirety.

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It is ordered that Plaintiff’s Motion for Partial Summary Judgment (ECF No. 32) is
denied.

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It is further ordered that Defendants’ motion to strike (ECF No. 51) is granted in

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part and denied in part. The Court will not strike Plaintiff’s expert witness disclosure.

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However, Plaintiff’s expert witness, Dr. Rowan, will be precluded from testifying that

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deprivation of sunscreen was the proximate cause of Plaintiff’s basal cell carcinoma.

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DATED THIS 20th day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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