United States District Court, D. Nevada
ORDER REGARDING REPORT AND RECOMMENDATION OF
MAGISTRATE JUDGE VALERIE P. COOKE
MIRANDA M. DU UNITED STATES DISTRICT JUDGE.
I.
SUMMARY
Before
the Court is the Report and Recommendation of United States
Magistrate Judge Valerie P. Cooke (ECF No. 108)
(“R&R”) relating to Defendants' Motion for
Summary Judgment (“Defendants' Motion”) (ECF
No. 84). The Magistrate Judge recommends that Defendants'
Motion be granted in part and denied in part. Defendants have
objected to the R&R.[1] (ECF No. 113.) For the reasons discussed
below, the R&R is accepted and adopted in full.
II.
BACKGROUND
Plaintiff
Ricky Nolan (“Nolan”) is an inmate in the custody
of the Nevada Department of Corrections (“NDOC”),
currently housed at Ely State Prison. Nolan is proceeding pro
se and in forma pauperis in a suit alleging that
several corrections officers violated his constitutional
rights during a series of events in 2013. Nolan alleges
Defendants used excessive force against him on July 27, 2013,
while he was awaiting transport to another facility.
Specifically, he alleges Defendants hit, kicked, choked, and
slammed him against a wall without legal justification. Nolan
further alleges that an officer later threatened him in an
attempt to prevent him from complaining about the beating.
(ECF No. 1-1 at 7, 11.) Following screening pursuant to 28
U.S.C. § 1915A, the Court allowed two counts to proceed:
Count I, alleging that Defendants Clark, Dozezal, Herring,
Hollingsworth and Hunt used excessive force in violation of
the Eighth Amendment; and Count III, alleging Herring
retaliated against Nolan for filing grievances, in violation
of the First Amendment. (ECF No. 14.)
Defendants'
Motion asks the Court to rule on Nolan's excessive force
and retaliation claims, or in the alternative to limit any
damages stemming from Nolan's retaliation claim. (ECF No.
84.) The Magistrate Judge issued an R&R recommending that
Defendants' Motion be denied except as it relates to
Defendant Dolezal, whom the Magistrate Judge recommends be
dismissed from this suit. (Id. at 10.) Nolan filed a
notice that he does not object to the R&R. (ECF No. 110.)
Defendants filed an objection (ECF No. 113) to which Nolan
responded (ECF No. 114.)
III.
LEGAL STANDARD
A.
Review of the Magistrate Judge's Recommendations
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.” 28 U.S.C. § 636(b)(1). 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).
B.
Summary Judgment Standard
“The
purpose of summary judgment is to avoid unnecessary trials
when there is no dispute as to the facts before the
court.” Nw. Motorcycle Ass'n v. U.S. Dep't
of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary
judgment is appropriate when the pleadings, the discovery and
disclosure materials on file, and any affidavits “show
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986).
An issue is “genuine” if there is a sufficient
evidentiary basis on which a reasonable fact-finder could
find for the nonmoving party and a dispute is
“material” if it could affect the outcome of the
suit under the governing law. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986). Where reasonable
minds could differ on the material facts at issue, however,
summary judgment is not appropriate. See Id. at
250-51. “The amount of evidence necessary to raise a
genuine issue of material fact is enough ‘to require a
jury or judge to resolve the parties' differing versions
of the truth at trial.'” Aydin Corp. v. Loral
Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting
First Nat'l Bank v. Cities Service Co., 391 U.S.
253, 288-89 (1968)). In evaluating a summary judgment motion,
a court views all facts and draws all inferences in the light
most favorable to the nonmoving party. Kaiser Cement
Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103
(9th Cir. 1986).
The
moving party bears the burden of showing that there are no
genuine issues of material fact. Zoslaw v. MCA Distrib.
Corp., 693 F.2d 870, 883 (9th Cir. 1982). Once the
moving party satisfies Rule 56's requirements, the burden
shifts to the party resisting the motion to “set forth
specific facts showing that there is a genuine issue for
trial.” Anderson, 477 U.S. at 256. The
nonmoving party “may not rely on denials in the
pleadings but must produce specific evidence, through
affidavits or admissible discovery material, to show that the
dispute exists, ” Bhan v. NME Hosps., Inc.,
929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Orr v. Bank of Am., 285
F.3d 764, 783 (9th Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)). “The mere existence of a scintilla of evidence
in support of the plaintiff's position will be
insufficient.” Anderson, 477 U.S. at 252.
IV.
DISCUSSION
A.
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