Tran v. City of Las Vegas

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 HOANG KIM TRAN, Case No. 2:22-cv-00203-ART-BNW

7 Plaintiff, ORDER v. 8 CITY OF LAS VEGAS, et al., 9 Defendants. 10 11 Pro se Plaintiff Hoang Kim Tran brings this action under 42 U.S.C. § 1983. 12 Plaintiff alleges that on March 28, 2021, police officers ordered a dog to “sic him,” 13 even though he had his hands up and was getting down on his knees, leading 14 the dog to bite his left forearm and torso and resulting in the permanent loss of 15 his right nipple. (ECF No. 1-1 at 3-5.) Before the Court is the Report and 16 Recommendation (“R&R” or “Recommendation”) of United States Magistrate 17 Judge Brenda Weksler (ECF No. 27), recommending the Court dismiss without 18 prejudice Plaintiff’s Fourth Amendment excessive force claim against Officers 19 Ortega, Lomoglio, Raso, Stokey, and Murano in their official capacity but allow 20 to proceed Plaintiff’s Fourth Amendment excessive force claim against the 21 officers in their individual capacity. Plaintiff had until May 8, 2023 to file an 22 objection. To date, no objection to the R&R has been filed. For this reason, and 23 as explained below, the Court adopts the R&R, and will allow Plaintiff’s Fourth 24 Amendment excessive force claim against the officers in their individual capacity 25 to proceed. 26 The Court “may accept, reject, or modify, in whole or in part, the findings 27 or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where 28 a party fails to object to a magistrate judge’s recommendation, the Court is not 1 required to conduct “any review at all . . . of any issue that is not the subject of 2 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also United States v. 3 Reyna-Tapia, 328 F.3d 1114, 1116 (9th Cir. 2003) (“De novo review of the 4 magistrate judges’ findings and recommendations is required if, but only if, one 5 or both parties file objections to the findings and recommendations.”) (emphasis 6 in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that 7 the Court “need only satisfy itself that there is no clear error on the face of the 8 record in order to accept the recommendation.”). 9 Because there is no objection, the Court need not conduct de novo review, 10 and is satisfied Judge Weksler did not clearly err. Here, Judge Weksler 11 recommends the Court allow Plaintiff’s Fourth Amendment excessive force 12 claims against the officers in their individual capacity to proceed but dismiss the 13 Fourth Amendment excessive force claim against the officers in their official 14 capacity. (ECF No. 27 at 4-5.) The Court agrees with Judge Weksler. Having 15 reviewed the R&R and the record in this case, the Court will adopt the R&R in 16 full. 17 It is therefore ordered that Judge Weksler’s Report and Recommendation 18 (ECF No. 27) is accepted and adopted in full. 19 It is further ordered that Plaintiff’s Fourth Amendment excessive force 20 claim against the officers in their individual capacity is allowed to proceed. 21 It is further ordered that Plaintiff’s Fourth Amendment excessive force 22 claim against the officers in their official capacity is dismissed without prejudice. 23 It is further ordered that Plaintiff’s mayhem claim is dismissed with 24 prejudice as Judge Weksler had ordered in a prior screening order (ECF No. 21). 25 /// 26 /// 27 /// 28 /// 1 DATED THIS Day of October 2023. 2

4 ANNER.TRAUM ———<“CtsCS 5 UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28