Opinion
Case No. 3:16-cv-00225-MMD-VPC
12-28-2017
JOHN HAROLD McCULLOUGH, Plaintiff, v. RICHARD MACHADO, et al, Defendants.
ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE VALERIE P. COOKE
I. SUMMARY
Before the Court is the Report and Recommendation of United States Magistrate Judge Valerie P. Cooke (ECF No. 25) ("R&R" or "Recommendation") recommending the Court grant plaintiff's motion to amend (ECF No 30) and dismiss Count VIII. Plaintiff timely filed an objection to the R&R ("Objection") (ECF No. 36) to which Defendants have responded (ECF No. 40). Plaintiff then filed a reply without leave of court in violation of LR IB 3-2. (ECR No. 40.) Accordingly, the Court will strike Plaintiff's reply (ECF No. 41).
II. RELEVANT BACKGROUND
Plaintiff, who is a prisoner in the custody of the Nevada Department of Corrections ("NDOC"), submitted an amended civil rights complaint pursuant to 42 U.S.C. § 1983. (ECF No. 5.) After screening pursuant to 28 U.S.C. § 1915A, on December 2, 2016, the Court construed the five counts asserted as a claim for deliberate indifference to serious medical needs in violation of the Eighth Amendment. (ECF No. 4 at 7-8.) On May 31, 2017, Plaintiff filed a motion for leave to file a second amended complaint ("SAC"). (ECF No. 30.) Defendants conceded that Counts I through V are similar to the counts that survived screening, indicated they would await screening of Counts VI and VII, and argued that Count VIII is barred based on immunity. (ECF No. 32.) The Magistrate Judge recommends granting Plaintiff's motion to file a SAC but allowed Plaintiff to proceed on only Counts I through VII. (ECF No. 35.)
III. DISCUSSION
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).
In light of plaintiff's objections, the Court has engaged in a de novo review to determine whether to adopt Magistrate Judge Cooke's recommendations. The Magistrate Judge properly declined Defendants' request for the Court to screen Counts VI and VII. The Magistrate Judge also properly found that Count VIII should be dismissed because the claim is asserted against two defendants—Justice Court Judge Karen R. Stephens and district attorney James Shirley-who are entitled to immunity from suit and against a defendant—public defender Steven W. Cochran who represented Plaintiff in his criminal case—who is not deemed a person acting under color of state law under § 1983. (ECF No. 35 at 3-4.) The Court agrees with the Magistrate Judge and overrules Plaintiff's Objection.
IV. CONCLUSION
It is therefore ordered, adjudged and decreed that the Report and Recommendation of Magistrate Judge Valerie P. Cooke (ECF No. 35) is accepted and adopted in its entirety.
It is further ordered that the Clerk file the second amended complaint (ECF Nos. 30, 30-1).
It is further ordered that Counts I, II, III, IV, V, VI and VII of the second amended complaint will proceed.
It is further ordered that Count VIII is dismissed with prejudice.
DATED THIS 28th day of December 2017.
/s/_________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE