Wheeler v. Sparks Police Department et al

Filing 9

ORDER that the Report and Recommendation of magistrate Judge Valerie P. Cooke ECF No. 6 is accepted and adopted in its entirety; granting ECF No. 5 Motion/Application for Leave to Proceed in forma pauperis; Clerk directed to file complai nt ECF No. 1 -1; some claims to proceed against Office Fye, Office Butler and Lieutenant Krall; some claims are dismissed without prejudice with leave to amend; some claims are dismissed with prejudice; Plaintiff's first amended complaint ECF No. 8 will proceed on only on Counts I and II as alleged. Signed by Judge Miranda M. Du on 1/8/2018. (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 CHRISTOPHER LEE WHEELER Plaintiff, 10 v. 11 SPARKS POLICE DEPARTMENT, et al., Case No. 3:17-cv-00321-MMD-VPC ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE 12 Defendants. 13 14 Before the Court is the Report and Recommendation of United States Magistrate 15 Judge Valerie P. Cooke (ECF No. 6) (“R&R”) relating to plaintiff’s application to proceed 16 in forma pauperis (ECF No. 1) and pro se complaint (ECF No. 1-1). Plaintiff file a non- 17 objection to the R&R on November 9, 2017 (ECF No. 7). 18 This Court “may accept, reject, or modify, in whole or in part, the findings or 19 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 20 timely objects to a magistrate judge’s report and recommendation, then the court is 21 required to “make a de novo determination of those portions of the [report and 22 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 23 to object, however, the court is not required to conduct “any review at all . . . of any issue 24 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 25 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 26 magistrate judge’s report and recommendation where no objections have been filed. See 27 United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 28 of review employed by the district court when reviewing a report and recommendation to 1 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 2 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 3 view that district courts are not required to review “any issue that is not the subject of an 4 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 5 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 6 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 7 which no objection was filed). 8 As noted, Plaintiff states that he does not object to the R&R. Plaintiff also filed a 9 first amended complaint (“FAC”) where he asserts two counts against Officer Fye, 10 Officer Butler and Lieutenant Krall. (ECF No. 8.) The Court has also conducted a de 11 novo review to determine whether to adopt the R&R. Upon reviewing the R&R and 12 complaint, this Court agrees with the Magistrate Judge’s recommendation. Because 13 Plainiff filed the FAC asserting only the two claims that the Magistrate Judge 14 recommends allowing him to proceed, the Court assumes Plaintiff does not wish to 15 pursue the claims that are dismissed without prejudice and with leave to amend. 16 Accordingly, this case will proceed based on the claims asserted in the FAC. It 17 is therefore ordered, adjudged and decreed that the Report and 18 Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 6) is accepted and 19 adopted in its entirety. It is ordered that plaintiff’s application to proceed in form pauperis (ECF No. 1) is 20 21 granted. 22 It is further ordered that the Clerk file the complaint (ECF No. 1-1). 23 It is further ordered that Count I Fourteenth Amendment, construed as a Fourth 24 Amendment excessive force claim, will proceed against Officer Fye, Officer Butler, and 25 Lieutenant Krall. It is further ordered that Count II Fourteen Amendment deliberate indifference 26 27 claim will proceed against Fye, Butler, and Krall. 28 /// 2 1 It is further ordered that all claims set forth against the City of Sparks, Washoe 2 County, and Sparks Police Department, and Fourteenth Amendment claims regarding 3 the mental health issues of Plaintiff and his son contained in Count III, are dismissed 4 without prejudice, with leave to amend. Plaintiff will need to retain an attorney to represet 5 his son should Plaintiff’s son wishes to proceed on the claim asserted in Count III. 6 It is further ordered that all claims set forth against the State of Nevada and the 7 Sixth and Eighth Amendment claims against all defendants contained in Counts I, II, III 8 are dismissed with prejudice. 9 It is further ordered that because Plaintiff filed a first amended complaint, this 10 case will proceed on only the two counts—Counts I and II—as alleged in the first 11 amended complaint (ECF No. 8). 12 DATED THIS 8th day of January 2018. 13 14 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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