McCullough v. Machado et al

Filing 64

ORDER that the Report and Recommendations of Magistrate Judge Valerie P. Cooke ECF No. 63 is accepted and adopted; Defendants' motion for partial dismissal ECF No. 48 is granted; District Attorney Bryce Shields, County Commi ssioners Robert McDougal, Carol Shank, Larry Rackley, and Deputy Sheriff Jerry Reid are dismissed; Count VII based upon the Prison Rape Elimination Act is dismissed. Signed by Judge Miranda M. Du on 8/27/2018. (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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JOHN HAROLD McCULLOUGH,
Plaintiff,

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v.
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RICHARD MACHADO, et al,

Case No. 3:16-cv-00225-MMD-VPC
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
VALERIE P. COOKE

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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. 63) (“R&R” or “Recommendation”) relating to

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Defendants’ partial motion to dismiss second amended civil rights complaint (“Motion”)

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(ECF No. 48). Plaintiff filed a notice of non-opposition to Defendants’ Motion. (ECF No.

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59.) Judge Cooke recommends granting Defendants’ Motion. (ECF No. 63.) Plaintiff had

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until August 13, 2018 to object. (Id.) To date, no objection to the R&R 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

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the view that district courts are not required to review “any issue that is not the subject of

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an objection.”). Thus, if there is no objection to a magistrate judge’s recommendation,

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then the court may accept the recommendation without review. See, e.g., Johnstone,

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263 F. Supp. 2d at 1226 (accepting, without review, a magistrate judge’s

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recommendation to which no objection was filed).

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Because Plaintiff does not oppose Defendants’ Motion and fails to object to the
R&R, the Court will adopt the R&R and grant Defendants’ Motion.
It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 63) is accepted and

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adopted in its entirety.

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It is further ordered that Defendants’ motion for partial dismissal (ECF No. 48) is

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granted. Claims against the following individuals are dismissed: District Attorney Bryce

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Shields, County Commissioners Robert McDougal, Carol Shank, Larry Rackley, and

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Deputy Sheriff Jerry Reid. Further, Count VII—based upon the Prison Rape Elimination

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Act—is dismissed.

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DATED THIS 27th day of August 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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