Augborne v. Filson et al

Filing 29

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BRIT F. AUGBORNE, III,

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Case No. 3:17-cv-00393-MMD-CBC
Plaintiff,

ORDER

v.
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FILSON, et al.,
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Defendants.
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The Court previously screened Plaintiff’s Complaint and allowed his single claim

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of excessive force to proceed. (ECF No. 11 at 6.) Plaintiff then filed a proposed First

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Amended Complaint (“FAC”), which Magistrate Judge Carla Baldwin Carry re-screened

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in a Report and Recommendation (“R&R”) (ECF No. 27). Plaintiff had until May 2, 2019

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to file an objection. (Id.) To date, no objection 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.” Id. Where a party fails to object, however,

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the court is not required to conduct “any review at all . . . of any issue that is not the

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subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth

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Circuit has recognized that a district court is not required to review a magistrate judge’s

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report and recommendation where no objections have been filed. See United States v.

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Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

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Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that

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district courts are not required to review “any issue that is not the subject of an objection”).

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Thus, if there is no objection to a magistrate judge’s recommendation, then the court may

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accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at

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1226 (accepting, without review, a magistrate judge’s recommendation to which no

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objection was filed).

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Nevertheless, this Court finds it appropriate to engage in a de novo review in order

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to determine whether to adopt the R&R. Having reviewed the FAC, the Court agrees with

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the R&R.

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It is therefore ordered that Judge Carry’s Report and Recommendation (ECF No.

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27) is adopted. Plaintiff will be permitted to proceed on the claims in the FAC as follows:

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(1) Count I alleging violations of Plaintiff’s First Amendment right against retaliation and

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Eighth Amendment right against excessive force against Defendant Officer Stolkz; (2)

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Count II alleging conspiracy and a violation of the Eighth Amendment duty to protect

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against Defendants Sgt. Homan and John Does numbers one through ten; (3) the portion

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of Count III alleging supervisory liability against Defendant NDOC Director Dzurenda; (4)

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Count IV alleging supervisory liability against Defendant Warden Filson; and (5) Count V

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alleging supervisory liability against John Doe Associate Warden of Operations. The

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portion of Count III alleging a First Amendment retaliation claim against Defendant

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Dzurenda is dismissed without prejudice.

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DATED THIS 8th day of May 2019.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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