Tagle v. State of Nevada et al

Filing 171

Ordered, adjudged and decreed that the Reports and Recommendations of Magistrate Judge William G. Cobb (ECF Nos. 155 , 156 ) are accepted and adopted in full. Plaintiff's motion for summary judgment (ECF No. 38 ) is denied. Defendant' ;s motion for summary judgment (ECF no. 115 ) is granted. Plaintiff's motion to dismiss the Magistrate Judge (ECF No. 158 ) is denied. Plaintiff's objection to the Magistrate Judge's order denying Defendants motion to strike (ECF N o. 158 ) is overruled. Defendant's motions for extension of time (ECF Nos. 161 , 162 , 163 ) are granted. Plaintiff's motion for Defendant to provide his files (ECF No. 169 ) is denied. Clerk shall send a copy of this Order to Plaint iff at the addressed identified on Plaintiff's Motion for Documents (ECF No. 169 at 1.) (Mailed 12/26/2017.) Plaintiff shall file a notice of change of address with the Court within 20 days. Clerk is directed to enter judgment in favor of Defendant in accordance with this Order and close this case. Signed by Judge Miranda M. Du on 12/26/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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VICTOR TAGLE,
Plaintiff,

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Case No. 3:16-cv-00148-MMD-WGC

v.
STATE OF NEVADA, et al.,

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ORDER REGARDING REPORT AND
RECOMMENDATION OF
MAGISTRATE JUDGE
WILLIAM G. COBB

Defendants.

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I.

SUMMARY

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Before the Court are two Reports and Recommendations of United States

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Magistrate Judge William G. Cobb. In the first Report and Recommendation entered on

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October 5, 2017 (“First R&R”) (ECF No. 155), the Magistrate Judge addressed Plaintiff’s

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filing entitled “Motion for Summary Judgment based on: criminal conduct of the counsel’s

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and defendants alike” (“Plaintiff’s Motion”) (ECF No. 38). In the second Report and

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Recommendation entered on that same date (“Second R&R”), the Magistrate Judge

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recommends granting Defendant Corey Rowley’s Motion for Summary Judgement

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(“Defendant’s Motion”) (ECF No. 115). Plaintiff filed a consolidated objection to both

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Reports and Recommendations (“Objection”). (ECF No. 159.) For the reasons discussed

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below, the Court adopts both Reports and Recommendations.

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The Magistrate Judge denied Defendant’s motion to strike Plaintiff’s “response” to

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Plaintiff’s Motion as a fugitive document. (ECF No. 157.) This ruling was in Plaintiff’s

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favor. However, Plaintiff filed an objection to the Magistrate Judge’s order where he

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again lodged complaints about the Magistrate Judge. Plaintiff’s objection (ECF No. 158)

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is therefore overruled. Plaintiff’s motion to dismiss the Magistrate Judge (ECF No. 160),

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which is identical to his Objection (ECF No. 159), is denied. Defendant’s motions for

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extension of time (ECF Nos. 161, 162, 163) are granted.

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Plaintiff also filed a motion for Defendant to provide a copy of his files (“Motion for

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Documents”).1 (ECF No. 169.) Plaintiff appears to request “all his files”, including those

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filed in other cases, because of alleged abuse and destruction of his files by orders of

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Hardcastle, and of Judge Cobb and Judge Gordon (presumably in a different case). This

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request has nothing to do with the excessive force claim in this case. Accordingly,

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Plaintiff’s motion is denied.

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II.

BACKGROUND

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Plaintiff, who is proceeding pro se, alleges that while he was housed at Ely State

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Prison, Defendant Corey Rowley had dragged Plaintiff to the point where he could not

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walk, had thrown Plaintiff into a van door, and had hit Plaintiff over the head multiple

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times for, what appears to be, the purpose of maliciously and sadistically causing harm.

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(ECF No. 6 at 6.) Based on these allegations, the Court permitted Plaintiff to proceed on

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a single claim of Eighth Amendment excessive force against Defendant. (Id.)

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III.

LEGAL STANDARDS
Review of the Magistrate Judge’s Recommendations

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A.

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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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1Plaintiff

contends that he “has been transfer [sic] to different state & location &
this facility has ‘storage’.” (ECF No. 169 at 1.) However, Plaintiff has not filed a notice of
his change in mailing address as required under LR IA 3-1. The filed stamp copy of his
Motion for Document was returned to the Court as undeliverable. Plaintiff identified an
Eloy, Arizona address on the Motion for Documents. Nevertheless, Plaintiff will be
required to provide a notice of his new mailing address.
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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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In light of Plaintiff’s Objection to the Magistrate Judge’s R&Rs, the Court has

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engaged in a de novo review to determine whether to adopt Magistrate Judge Cobb’s

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R&Rs. Upon reviewing the R&Rs and records in this case, this Court finds good cause to

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adopt the Magistrate Judge’s R&Rs in full.

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B.

Summary Judgment Standard

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“The purpose of summary judgment is to avoid unnecessary trials when there is

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no dispute as to the facts before the court.” Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric.,

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18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the

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pleadings, the discovery and disclosure materials on file, and any affidavits “show there

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is no genuine issue as to any material fact and that the movant is entitled to judgment as

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a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is

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“genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could

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find for the nonmoving party and a dispute is “material” if it could affect the outcome of

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the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

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(1986). Where reasonable minds could differ on the material facts at issue, however,
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summary judgment is not appropriate. See id. at 250-51. “The amount of evidence

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necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to

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resolve the parties' differing versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718

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F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank v. Cities Service Co., 391 U.S.

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253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts

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and draws all inferences in the light most favorable to the nonmoving party. Kaiser

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Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

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The moving party bears the burden of showing that there are no genuine issues

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of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once

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the moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting

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the motion to “set forth specific facts showing that there is a genuine issue for trial.”

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Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the

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pleadings but must produce specific evidence, through affidavits or admissible discovery

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material, to show that the dispute exists,” Bhan v. NME Hosps., Inc., 929 F.2d 1404,

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1409 (9th Cir. 1991), and “must do more than simply show that there is some

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metaphysical doubt as to the material facts.” Orr v. Bank of Am., 285 F.3d 764, 783 (9th

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Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

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(1986)). “The mere existence of a scintilla of evidence in support of the plaintiff’s position

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will be insufficient.” Anderson, 477 U.S. at 252.

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IV.

DISCUSSION

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In the First R&R, the Magistrate Judge found no support in the record for

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Plaintiff’s allegation that Deputy Attorney General Hardcastle and Beecroft insulted him

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in a filing, or that Hardcastle, Beecroft or Leslie are in any way responsible to extending

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his sentence. (ECF No. 155 at 3.) In the Second R&R, the Magistrate Judge

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recommends granting Defendant’s Motion based on Plaintiff’s failure to exhaust his

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administrative remedies. (ECF No. 156 at 6-7.)

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In his Objection, Plaintiff complains about the Magistrate Judge and his purported

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partiality. (ECF No. 159.) These unsupported accusations are fantastical and are
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inappropriate. Plaintiff also contends that summary judgment cannot be granted against

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a pro se party. (Id. at 3.) To the contrary, pro se litigants like Plaintiff must follow the

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same rules of procedure that govern other litigants. United States v. Merrill, 746 F.2d

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458, 465 (9th Cir.1984), cert. denied, 469 U.S. 1165 (1985).

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Having reviewed the filings relating to Plaintiff’s Motion, Defendant’s Motion and

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Plaintiff’s Objection, the Court agrees with the Magistrate Judge and will adopt the two

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R&Rs.

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V.

CONCLUSION

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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. 155, 156) are

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accepted and adopted in full. Plaintiff’s motion for summary judgment (ECF No. 38) is

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denied. Defendant’s motion for summary judgment (ECF no. 115) is granted.
It is further ordered that Plaintiff’s motion to dismiss the Magistrate Judge (ECF

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No. 158) is denied.
It is further ordered that Plaintiff’s objection to the Magistrate Judge’s order

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denying Defendant’s motion to strike (ECF No. 158) is overruled.
It is further ordered that Defendant’s motions for extension of time (ECF Nos. 161,

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162, 163) are granted.
It is further ordered that Plaintiff’s motion for Defendant to provide his files (ECF

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No. 169) is denied.
It is further ordered that the Clerk send a copy of this Order to Plaintiff at the

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addressed identified on Plaintiff’s Motion for Documents (ECF No. 169 at 1.)
It is further ordered that Plaintiff file a notice of change of address with the Court

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within twenty (20) days.

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The Clerk is directed to enter judgment in favor of Defendant in accordance with
this Order and close this case.
DATED THIS 26th day of December 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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