Burns v. Cox et al

Filing 87

ORDER accepting and adopting in full ECF No. 83 Report and Recommendation; denying Defendants' ECF No. 74 Motion for Summary Judgment; dismissing Defendant Timothy Filson; referring case to Judge Cobb to conduct a settlement conference. Signed by Chief Judge Miranda M. Du on 6/29/2020. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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DAVID BURNS,

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Case No. 3:18-cv-00231-MMD-WGC
Plaintiff,

ORDER

v.
JESSE COX, et al.,
Defendants.

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Plaintiff David Burns, who is in the custody of the Nevada Department of

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Corrections (“NDOC”), brings this action under 42 U.S.C. § 1983. Before the Court is the

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Report and Recommendation (“R&R” or “Recommendation”) of United States Magistrate

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Judge William G. Cobb (ECF No. 83), recommending that the Court deny Defendants’

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motion for partial summary judgment (“Motion”) (ECF No. 74), and dismiss Defendant

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Timothy Filson under Federal Rule of Civil Procedure 4(m). Defendants had until June

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22, 2020 to file an objection. To date, no objection to the R&R has been filed. For this

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reason, and as explained below, the Court adopts the R&R and will both deny Defendants’

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Motion, and dismiss Defendant Filson.

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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 . . .

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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 found that Plaintiff has created a

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disputed issue of material fact as to whether the conditions he was subjected to in being

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moved to Unit 2 created an atypical and significant change to his conditions of

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confinement. (ECF No. 83 at 11.) Judge Cobb further found Defendants are not entitled

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to summary judgment based on qualified immunity. (Id. at 15.) Having reviewed the R&R,

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the Complaint and Defendants’ Motion, the Court agrees with Judge Cobb.

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In addition, as the Court will adopt the R&R, the dispositive motion deadline has

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passed, Plaintiff has expressed his interest in a settlement conference (ECF No. 86), and

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it has been some time since the parties last participated in a settlement conference, the

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Court finds it appropriate to refer this case to Judge Cobb to conduct a settlement

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conference. The joint pretrial order will be due 30 days after the date of the settlement

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conference if the case does not settle.
It is therefore ordered that Judge Cobb’s Report and Recommendation (ECF No.

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83) is accepted and adopted in full.
It is further ordered that Defendants’ motion for summary judgment (ECF No. 74)

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is denied.
It is further ordered that Defendant Timothy Filson is dismissed under Fed. R. Civ.

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P. 4(m).

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///

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It is further ordered this case is referred to Judge Cobb to conduct a settlement

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conference. If this case does not settle at the settlement conference, the Joint Pretrial

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Order will be due 30 days after the date of the settlement conference. The existing

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scheduling order (ECF No. 55) otherwise remains in full force and effect.

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DATED THIS 29th day of June 2020.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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