2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 JOSEPH VIGIL, Case No. 3:18-cv-00424-MMD-WGC

7 Plaintiffs, ORDER v. 8 SGT. MAGUIRE, et al., 9 Defendants. 10 11 Plaintiff, who is in the custody of the Nevada Department of Corrections (“NDOC”), 12 has submitted a civil rights complaint pursuant to

. (ECF No. 1-1.) The 13 Court screened Plaintiff’s Complaint (ECF No. 5) and permitted him to file his First 14 Amended Complaint (the “FAC”) (ECF No. 7), which the Court screened as well (ECF No. 15 9). Before the Court is the Report and Recommendation (“R&R”) of United States 16 Magistrate Judge William G. Cobb (ECF No. 39), recommending that the Court deny 17 Plaintiff’s motion to amend the FAC (the “Motion”) (ECF No. 24), deem the FAC the 18 operative complaint, and permit Plaintiff to proceed only on his Eighth Amendment claim 19 against Defendant Maguire, but dismiss all remaining claims and defendants with 20 prejudice. Plaintiff had until May 12, 2020 to file an objection. To date, no objection has 21 been filed. For that reason, and because the Court agrees with Judge Cobb, the Court will 22 adopt the R&R.1 23 The Court incorporates the facts outlined in the R&R (ECF No. 39 at 1-6) and does 24 not recite them here. 25 This Court “may accept, reject, or modify, in whole or in part, the findings or 26 recommendations made by the magistrate judge.”

(b)(1). Where a party 27

28 1The Court has also reviewed the parties’ related briefs (ECF Nos. 25-1, 28, 30) and Plaintiff’s proposed second amended complaint (the “SAC”) (ECF No. 25). 2 issue that is not the subject of an objection.” Thomas v. Arn,

(1985); 3 see also United States v. Reyna-Tapia,

(9th Cir. 2003) (“De novo review of 4 the magistrate judges’ findings and recommendations is required if, but only if, one or both 5 parties file objections to the findings and recommendations.”); Fed. R. Civ. P. 72, Advisory 6 Committee Notes (1983) (providing that the court “need only satisfy itself that there is no 7 clear error on the face of the record in order to accept the recommendation”). 8 The Court finds it unnecessary to engage in de novo review to determine whether 9 to adopt Magistrate Judge Cobb’s R&R and is satisfied that there is no clear error. Judge 10 Cobb found that because Plaintiff filed the Motion more than 21 days after serving Maguire 11 and Maguire did not consent to amendment, Plaintiff was required to seek leave of court. 12 (ECF No. 39 at 7 (citing to Fed. R. Civ. P. 15).) Judge Cobb recommended that the Court 13 deny the Motion as futile. (Id. at 7, 13.) The Court already found that Plaintiff could proceed 14 with his Eighth Amendment claim against Maguire (ECF No. 5 at 7), which Plaintiff 15 realleges in the SAC (ECF No. 25 at 7-8). But as Judge Cobb found, Plaintiff has twice 16 failed to state a claim for retaliation under the First Amendment, due process violation 17 under the Fifth and Fourteenth Amendments, and excessive force under the Eighth 18 Amendment against Defendants other than Maguire. (ECF No. 39 at 10-13.) Moreover, 19 Judge Cobb found that Plaintiff cannot state a claim against the State of Nevada under § 20 1983 or the Eleventh Amendment. (Id. at 9.) Judge Cobb therefore recommended that the 21 Court dismiss all claims and Defendants with prejudice, except permit Plaintiff to proceed 22 on his Eighth Amendment claim against Maguire. (Id. at 13-14.) The Court agrees. 23 It is therefore ordered that the Report and Recommendation of Magistrate Judge 24 William G. Cobb (ECF No. 39) is accepted and adopted in full. 25 It is further ordered that Plaintiff’s Motion to Amend (ECF No. 24) is denied as futile. 26 It is furthered ordered that the First Amended Complaint (ECF No. 7) is deemed 27 the operative Complaint. Plaintiff will proceed with only the Eighth Amendment excessive 28 /// 1 || force claim against Defendant Maguire. All other claims and Defendants are dismissed 2 || with prejudice. 3 4 DATED THIS 15* day of May 2020. 5

7 CHIEF UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28