Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nolan v. Herring

United States District Court, D. Nevada

March 16, 2017

RICKY NOLAN Plaintiff,
v.
CADE HERRING, et al., Defendants.

          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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.