Bates v. Las Vegas Metropolitan Police Dept.

Opinion

DISTRICT OF NEVADA

James E. Bates, Case No.: 2:22-cv-00957-CDS-EJY

Plaintiff Order Adopting Magistrate Judge’s Report v. and Recommendation

Las Vegas Metropolitan Police Department, et [ECF No. 19] al., Defendants United States Magistrate Judge Elayna J. Youchah issued a Report and Recommendation (R&R) following a review of plaintiff James Bates’ first amended complaint (ECF No. 16), which alleges civil rights violations against defendant Las Vegas Metropolitan Police Department and several officers. In the R&R, she recommends that I dismiss parts of Bates’ complaint with leave to amend his claims and dismiss other parts with prejudice. See generally ECF No. 19. The deadline by which Bates was permitted to file objections to the R&R was March 27, 2023. Id. at 13; LR IB 3-2. To date, no objections have been filed. The R&R also gave plaintiff the opportunity to file a second amended complaint on or before April 10, 2023. Bates chose to file a second amended complaint on April 3, 2023. ECF No. 21. Because Bates has not objected to the R&R, I adopt it in its entirety and dismiss the first amended complaint. “[N]o review is required of a magistrate judge’s report and recommendation unless objections are filed.” Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003); Thomas v. Arn, 474 U.S. 140, 150 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). While de novo review is not required because the plaintiff does not object to the R&R, I nevertheless conduct one here. See 28 U.S.C. § 636(b)(1). A magistrate judge’s order should only be set aside if it is clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a); LR IB 3-1(a); 28 U.S.C. § 636(b)(1)(A). A magistrate judge’s order is “clearly erroneous” if the court has “a definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); Burdick v. Comm’r IRS, 979 F.2d 1369, 1370 (9th Cir. 1992). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law[,] or rules of procedure.” UnitedHealth Grp., Inc. v. United Healthcare, Inc., 2014 WL 4635882, at *1 (D. Nev. Sept. 16, 2014). Based on my consideration of the record, lack of objections, and the law, I find Magistrate Judge Youchah’s R&R well-reasoned and neither clearly erroneous nor contrary to the law. Accordingly, the Magistrate Judge’s Report and Recommendation (ECF No. 19) is ADOPTED in its entirety. Conclusion IT IS THEREFORE ORDERED that the Magistrate Judge’s Report and Recommendation [ECF No. 19] is ADOPTED in its entirety. IT IS FURTHER ORDERED that plaintiff’s Fourth Amendment claim against the Las Vegas Metropolitan Police Department be dismissed with prejudice. IT IS FURTHER ORDERED that plaintiff’s Fourteenth Amendment Due Process excessive force claim against all LVMPD officers be dismissed with prejudice. IT IS FURTHER ORDERED that plaintiff’s Right to Privacy claim under Article 1, Section 18 of the Nevada Constitution against all defendants be dismissed without prejudice but without leave to amend as it appears amendment would be futile. Plaintiff’s proposed second amended complaint (ECF No. 21) will be screened in due course. DATED: April 27, 2023 ______________________________________ Cristina D. Silva United States District Judge