Villatoro v. Preston et al

Filing 95

ORDERED that Judge Cobb's Report and Recommendation (ECF No. 88 ) is accepted and adopted in full. Defendants' motion for summary judgment (ECF No. 61 ) is granted in part, and denied in part as specified herein. The remaining Defendants must file any renewed motion for summary judgment as to the Eighth Amendment claims in Count I within 30 days (8/12/2020). Signed by Chief Judge Miranda M. Du on 7/13/2020. (Copies have been distributed pursuant to the NEF - DRM)

Case 3:16-cv-00531-MMD-WGC Document 95 Filed 07/13/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BALMORE ALEXANDER VILLATORO,

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Plaintiff,

Case No. 3:16-cv-00531-MMD-WGC
ORDER

v.
PRESTON, et al.,
Defendants.

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Plaintiff Balmore Alexander Villatoro, who is in the custody of the Nevada

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Department of Corrections (“NDOC”), brings this action under 42 U.S.C. § 1983. Before

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the Court is the Report and Recommendation (“R&R” or “Recommendation”) of United

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States Magistrate Judge William G. Cobb (ECF No. 88), recommending that the Court

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grant in part, and deny in part, Defendants’ motion for partial summary judgment

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(“Motion”) (ECF No. 61). Defendants had until June 24, 2020 to file an objection. (ECF

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No. 88.) To date, they have not filed an objection. Moreover, the Court gave Plaintiff more

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time to file an objection (ECF No. 93), and Plaintiff filed a notice stating he has no

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objection to the Court adopting the R&R (ECF No. 94). For these reasons, and as

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explained below, the Court adopts the R&R, and will grant in part, and deny in part,

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Defendants’ Motion.

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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.” Id. But where a party fails to object to a

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magistrate’s recommendation, the Court is not required to conduct “any review at all . . .

Case 3:16-cv-00531-MMD-WGC Document 95 Filed 07/13/20 Page 2 of 3

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of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149

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(1985); see also U.S. v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo

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review of the magistrate judges’ findings and recommendations is required if, but only if,

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one or both parties file objections to the findings and recommendations.”) (emphasis in

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original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that the court

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“need only satisfy itself that there is no clear error on the face of the record in order to

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accept the recommendation”).

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While Defendants have failed to object to Judge Cobb’s recommendation to deny

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their motion for partial summary judgment, the Court will conduct a de novo review to

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determine whether to adopt the R&R. Judge Cobb first found that Defendants’ Motion

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should be denied without prejudice as to Plaintiff’s Eighth Amendment deliberate

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indifference to medical needs claim because Defendants’ Motion relied on medical

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records that Plaintiff said he was not permitted to review.1 (ECF No. 88 at 5-6.) However,

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Judge Cobb recommends that Defendants’ Motion be granted as to Plaintiff’s due process

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claim because the uncontroverted evidence indicated he was provided with adequate

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process. (Id. at 7-14.) Plaintiff does not object to this recommendation. (ECF No. 94 at 1.)

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Having reviewed the R&R, the Complaint and Defendants’ Motion, the Court agrees with

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Judge Cobb.

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It is therefore ordered that Judge Cobb’s Report and Recommendation (ECF No.
88) is accepted and adopted in full.

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It is further ordered that Defendants’ motion for summary judgment (ECF No. 61)

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is granted in part, and denied in part. The Motion is granted as to the due process claim

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in Count II against Baca, Powers and Tristan, but denied without prejudice as to the Eighth

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Amendment deliberate indifference to serious medical needs and conditions of

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confinement claims in Count I.

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1Judge

Cobb has since granted Plaintiff leave to review those records with the
assistance of a reader because Plaintiff has vision issues (ECF No. 83), and continues to
work to ensure Plaintiff is able to review these records (ECF Nos. 89, 91).
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Case 3:16-cv-00531-MMD-WGC Document 95 Filed 07/13/20 Page 3 of 3

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It is further ordered that the remaining Defendants must file any renewed motion

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for summary judgment as to the Eighth Amendment claims in Count I within 30 days. The

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Court grants Defendants leave to file Plaintiff’s sensitive medical records under seal.

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However, Defendants must ensure that Plaintiff is given ample opportunity to review any

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records filed in support of their renewed motion, including any records filed under seal,

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along with his reader, before filing a response to the motion for summary judgment. The

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response and reply briefing are due in accordance with the Local Rules.

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DATED THIS 13th day of July 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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