Wheeler v. Sparks Police Department et al
Filing
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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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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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***
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CHRISTOPHER LEE WHEELER
Plaintiff,
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v.
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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
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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. 6) (“R&R”) relating to plaintiff’s application to proceed
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in forma pauperis (ECF No. 1) and pro se complaint (ECF No. 1-1). Plaintiff file a non-
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objection to the R&R on November 9, 2017 (ECF No. 7).
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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 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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As noted, Plaintiff states that he does not object to the R&R. Plaintiff also filed a
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first amended complaint (“FAC”) where he asserts two counts against Officer Fye,
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Officer Butler and Lieutenant Krall. (ECF No. 8.) The Court has also conducted a de
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novo review to determine whether to adopt the R&R. Upon reviewing the R&R and
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complaint, this Court agrees with the Magistrate Judge’s recommendation. Because
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Plainiff filed the FAC asserting only the two claims that the Magistrate Judge
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recommends allowing him to proceed, the Court assumes Plaintiff does not wish to
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pursue the claims that are dismissed without prejudice and with leave to amend.
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Accordingly, this case will proceed based on the claims asserted in the FAC.
It
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is
therefore
ordered,
adjudged
and
decreed
that
the
Report
and
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Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 6) is accepted and
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adopted in its entirety.
It is ordered that plaintiff’s application to proceed in form pauperis (ECF No. 1) is
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granted.
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It is further ordered that the Clerk file the complaint (ECF No. 1-1).
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It is further ordered that Count I Fourteenth Amendment, construed as a Fourth
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Amendment excessive force claim, will proceed against Officer Fye, Officer Butler, and
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Lieutenant Krall.
It is further ordered that Count II Fourteen Amendment deliberate indifference
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claim will proceed against Fye, Butler, and Krall.
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///
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It is further ordered that all claims set forth against the City of Sparks, Washoe
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County, and Sparks Police Department, and Fourteenth Amendment claims regarding
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the mental health issues of Plaintiff and his son contained in Count III, are dismissed
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without prejudice, with leave to amend. Plaintiff will need to retain an attorney to represet
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his son should Plaintiff’s son wishes to proceed on the claim asserted in Count III.
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It is further ordered that all claims set forth against the State of Nevada and the
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Sixth and Eighth Amendment claims against all defendants contained in Counts I, II, III
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are dismissed with prejudice.
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It is further ordered that because Plaintiff filed a first amended complaint, this
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case will proceed on only the two counts—Counts I and II—as alleged in the first
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amended complaint (ECF No. 8).
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DATED THIS 8th day of January 2018.
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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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