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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 JIM BASS HOLDEN, Case No. 3:16-cv-00064-MMD-WGC Plaintiff, 10 v. 11 12 STATE OF NEVADA, ex rel. NEVADA DEPARTMENT OF CORRECTIONS, et al., ORDER ACCEPTING AND ADOPTING REPORTS AND RECOMMENDATIONS OF MAGISTRATE JUDGE WILLIAM G. COBB 13 Defendants. 14 15 Before the Court are two reports and recommendations of United States 16 Magistrate Judge William G. Cobb (ECF Nos. 59, 62) (“R&R” or “Recommendation”), 17 relating to Plaintiff’s Motion for Partial Summary Judgment (“Plaintiff’s Motion”) (ECF No. 18 32) and Defendants’ motion to strike Plaintiff’s proposed expert witness (“Defendants’ 19 Motion”) (ECF No. 51). The deadlines for objections have expired and the parties have 20 not objected. 21 This Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 23 timely objects to a magistrate judge’s report and recommendation, then the court is 24 required to “make a de novo determination of those portions of the [report and 25 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 26 to object, however, the court is not required to conduct “any review at all . . . of any issue 27 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 28 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 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, the Court finds it appropriate to engage in a de novo review to 12 determine whether to adopt Magistrate Judge Cobb’s Recommendation. The Magistrate 13 Judge recommends denying Plaintiff’s Motion, which is based primarily on Defendants’ 14 failure to identify a rebuttal expert, because the issue of causation of Plaintiff’s skin 15 condition is a factual dispute for the jury to resolve. (ECF No. 59.) Upon reviewing the 16 Recommendation, Plaintiff’s Motion and the underlying records, the Court agrees with 17 the Magistrate Judge’s recommendation to deny summary judgment. 18 With respect to Defendant’s Motion, the Magistrate Judge recommends granting it 19 in part and denying it in part. (ECF No. 62.) In particular, the Magistrate Judge 20 recommends denying the Motion to the extent Defendant seeks to strike Plaintiff’s expert 21 witness disclosure on the premise that his disclosure fails to comply with Fed. R. Civ. P. 22 26. The Magistrate Judge recommends granting the Motion to the extent it seeks to 23 preclude Plaintiff’s expert witness, Noel M. Rowan, M.D., from testifying that deprivation 24 of sunscreen was the proximate cause of Plaintiff’s skin condition (basal cell carcinoma) 25 under Fed. R. Evid. 702. The Court has reviewed briefs relating to Defendants’ Motion 26 and agrees with the R&R. 27 /// 28 /// 2 1 It is therefore ordered, adjudged and decreed that the reports and 2 recommendations of Magistrate Judge William G. Cobb (ECF Nos. 59, 62) are accepted 3 and adopted in its entirety. 4 5 It is ordered that Plaintiff’s Motion for Partial Summary Judgment (ECF No. 32) is denied. 6 It is further ordered that Defendants’ motion to strike (ECF No. 51) is granted in 7 part and denied in part. The Court will not strike Plaintiff’s expert witness disclosure. 8 However, Plaintiff’s expert witness, Dr. Rowan, will be precluded from testifying that 9 deprivation of sunscreen was the proximate cause of Plaintiff’s basal cell carcinoma. 10 DATED THIS 20th day of October 2017. 11 12 13 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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