Parkes v. Baca et al

Filing 64

ORDERED that Judge Baldwin's Report and Recommendation (ECF No. 63 ) is accepted and adopted in full. Defendants' motion for summary judgment (ECF No. 56 ) is denied. Signed by Chief Judge Miranda M. Du on 10/20/2021. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT E. PARKES,

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Case No. 3:18-cv-00263-MMD-CLB
Plaintiff,

ORDER

v.
ISIDRO BACA, et al.,
Defendants.

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Pro se Plaintiff Robert E. Parkes brings this action under 42 U.S.C. § 1983 for

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events that took place while he was incarcerated at Northern Nevada Correctional Center.

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(ECF No. 5.) Before the Court is the Report and Recommendation (“R&R” or

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“Recommendation”) of United States Magistrate Judge Carla L. Baldwin (ECF No. 63),

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recommending the Court deny Defendants’ motion for summary judgment (ECF No. 56

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(“Motion”)).1 The parties had until October 15, 2020, to file an objection. To date, no

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objection to the R&R has been filed. For this reason, and as explained below, the Court

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adopts the R&R, and will deny the Motion.

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The 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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fails to object to a magistrate judge’s recommendation, the Court is not required to

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conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas

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v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,

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1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and

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recommendations is required if, but only if, one or both parties file objections to the

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findings and recommendations.”) (emphasis in original); Fed. R. Civ. P. 72, Advisory

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1Parkes

responded (ECF No. 59) and Defendants replied (ECF No. 60).

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Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no

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clear error on the face of the record in order to accept the recommendation.”).

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Because there is no objection, the Court need not conduct de novo review, and is

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satisfied Judge Baldwin did not clearly err. As Judge Baldwin notes, this is the second

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motion for summary judgment filed in this matter. (ECF No. 63 at 6-7.) Although the Court

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denied the previous summary judgment motion without prejudice, the instant Motion has

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failed to remedy the prior motion’s flaws and contains several errors, including a failure

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to reattach exhibits in support of the instant Motion and several citations to exhibits which

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do not exist. (Id. at 7.) Judge Baldwin considered the available options provided by

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Federal Rule of Civil Procedure 56(e), which addresses when a party fails to properly

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support or address a fact in a motion for summary judgment, and subsequently concluded

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that because Defendants have already had one opportunity to file a proper summary

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judgment motion, such relief is not warranted here. (Id.) The Court agrees. Defendants

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have failed to carry their burden of demonstrating an absence of genuine dispute, and

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therefore the Motion should be denied. Having reviewed the R&R and the record in this

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case, the Court will adopt the R&R in full.

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It is therefore ordered that Judge Baldwin’s Report and Recommendation (ECF
No. 63) is accepted and adopted in full.
It is further ordered that Defendants’ motion for summary judgment (ECF No. 56)
is denied.
DATED THIS 20th Day of October 2021.

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MIRANDA M. DU
CHIEF UNITED STATES DISTRICT JUDGE

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