Opinion
2:22-cv-00203-ART-BNW
10-11-2023
HOANG KIM TRAN, Plaintiff, v. CITY OF LAS VEGAS, et al., Defendants.
ORDER
ANNER. TRAUM UNITED STATES DISTRICT JUDGE
Pro se Plaintiff Hoang Kim Tran brings this action under 42 U.S.C. § 1983. Plaintiff alleges that on March 28, 2021, police officers ordered a dog to “sic him,” even though he had his hands up and was getting down on his knees, leading the dog to bite his left forearm and torso and resulting in the permanent loss of his right nipple. (ECF No. 1-1 at 3-5.) Before the Court is the Report and Recommendation (“R&R” or “Recommendation”) of United States Magistrate Judge Brenda Weksler (ECF No. 27), recommending the Court dismiss without prejudice Plaintiff's Fourth Amendment excessive force claim against Officers Ortega, Lomoglio, Raso, Stokey, and Murano in their official capacity but allow to proceed Plaintiff's Fourth Amendment excessive force claim against the officers in their individual capacity. Plaintiff had until May 8, 2023 to file an objection. To date, no objection to the R&R has been filed. For this reason, and as explained below, the Court adopts the R&R, and will allow Plaintiff's Fourth Amendment excessive force claim against the officers in their individual capacity to proceed.
The 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 fails to object to a magistrate judge's recommendation, 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); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the magistrate judges' findings and recommendations is required if, but only if, one or both parties file objections to the findings and recommendations.”) (emphasis in original); Fed.R.Civ.P. 72, Advisory Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).
Because there is no objection, the Court need not conduct de novo review, and is satisfied Judge Weksler did not clearly err. Here, Judge Weksler recommends the Court allow Plaintiff's Fourth Amendment excessive force claims against the officers in their individual capacity to proceed but dismiss the Fourth Amendment excessive force claim against the officers in their official capacity. (ECF No. 27 at 4-5.) The Court agrees with Judge Weksler. Having reviewed the R&R and the record in this case, the Court will adopt the R&R in full.
It is therefore ordered that Judge Weksler's Report and Recommendation (ECF No. 27) is accepted and adopted in full.
It is further ordered that Plaintiff's Fourth Amendment excessive force claim against the officers in their individual capacity is allowed to proceed.
It is further ordered that Plaintiff's Fourth Amendment excessive force claim against the officers in their official capacity is dismissed without prejudice.
It is further ordered that Plaintiff's mayhem claim is dismissed with prejudice as Judge Weksler had ordered in a prior screening order (ECF No. 21).