Augborne v. Filson et al
ORDER that Judge Carry's Report and Recommendation (ECF No. 27 ) is adopted; Plaintiff will be permitted to proceed on the claims in the FAC as follows: Count I to proceed against Stolkz; Count II to proceed against Homan and John Does 1 through 10; Count III alleging supervisory liability to proceed against Dzurenda; Count IV to proceed against Filson; and Count V to proceed against John Doe AWO. The portion of Count III alleging a First Amendment retaliation claim against Defendant Dzurenda is dismissed without prejudice. Signed by Judge Miranda M. Du on 5/8/2019. (Copies have been distributed pursuant to the NEF - LH)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
BRIT F. AUGBORNE, III,
Case No. 3:17-cv-00393-MMD-CBC
FILSON, et al.,
The Court previously screened Plaintiff’s Complaint and allowed his single claim
of excessive force to proceed. (ECF No. 11 at 6.) Plaintiff then filed a proposed First
Amended Complaint (“FAC”), which Magistrate Judge Carla Baldwin Carry re-screened
in a Report and Recommendation (“R&R”) (ECF No. 27). Plaintiff had until May 2, 2019
to file an objection. (Id.) To date, no objection has been filed.
This Court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge’s report and recommendation, then the court is
required to “make a de novo determination of those portions of the [report and
recommendation] to which objection is made.” Id. Where a party fails to object, however,
the court is not required to conduct “any review at all . . . of any issue that is not the
subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth
Circuit has recognized that a district court is not required to review a magistrate judge’s
report and recommendation where no objections have been filed. See United States v.
Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review
employed by the district court when reviewing a report and recommendation to which no
objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.
Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that
district courts are not required to review “any issue that is not the subject of an objection”).
Thus, if there is no objection to a magistrate judge’s recommendation, then the court may
accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at
1226 (accepting, without review, a magistrate judge’s recommendation to which no
objection was filed).
Nevertheless, this Court finds it appropriate to engage in a de novo review in order
to determine whether to adopt the R&R. Having reviewed the FAC, the Court agrees with
It is therefore ordered that Judge Carry’s Report and Recommendation (ECF No.
27) is adopted. Plaintiff will be permitted to proceed on the claims in the FAC as follows:
(1) Count I alleging violations of Plaintiff’s First Amendment right against retaliation and
Eighth Amendment right against excessive force against Defendant Officer Stolkz; (2)
Count II alleging conspiracy and a violation of the Eighth Amendment duty to protect
against Defendants Sgt. Homan and John Does numbers one through ten; (3) the portion
of Count III alleging supervisory liability against Defendant NDOC Director Dzurenda; (4)
Count IV alleging supervisory liability against Defendant Warden Filson; and (5) Count V
alleging supervisory liability against John Doe Associate Warden of Operations. The
portion of Count III alleging a First Amendment retaliation claim against Defendant
Dzurenda is dismissed without prejudice.
DATED THIS 8th day of May 2019.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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