The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
ORDER ADOPTING REPORT AND RECOMMENDATION
On August 6, 2010, United States Magistrate Ronald E. Bush issued his Report and Recommendation in this matter. Docket No. 36. Pursuant to 28 U.S.C. § 636(b)(1), the parties had fourteen days in which to file written objections to the Report and Recommendation. Defendants filed their objections on August 20, 2010. Docket No. 37. No objection or response to the objections filed by Defendants was filed by Plaintiffs.
The matter is now ripe for the Court's review.
Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court "may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." Moreover, this Court "shall make a de novo determination of those portions of the report which objection is made." Id. In United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003), the court interpreted the requirements of 28 U.S.C. 636(b)(1)(C):
The statute [28 U.S.C. § 636(b)(1)(C)] makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. As the Peretz Court instructed, "to the extent de novo review is required to satisfy Article III concerns, it need not be exercised unless requested by the parties." Peretz, 501 U.S. at 939 (internal citation omitted). Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct. See Ciapponi, 77 F.3d at 1251 ("Absent an objection or request for review by the defendant, the district court was not required to engage in any more formal review of the plea proceeding."); see also Peretz, 501 U.S. at 937-39 (clarifying that de novo review not required for Article III purposes unless requested by the parties) . . . .
See also Wang v. Masaitis, 416 F.3d 993, 1000 & n.13 (9th Cir. 2005). Based on the objections filed in this case, the Court has conducted a de novo review of the record pursuant to 28 U.S.C. § 636(b).
This case alleged constitutional violations by various police officers, The Coeur d'Alene Police Department, Chief of Police Wayne Longo and the City of Coeur d'Alene involving a traffic stop and observers to the traffic stop who were videotaping the stop and who were talking to the officers conducting the traffic stop. One of the observers was ultimately tasered for not complying with an officer's request for identification. The specific factual background was set forth in the Report and Recommendation and the Court incorporates those facts by reference as to the traffic stop of Plaintiff Conrad Steele ("Steele"), Plaintiff Deloyd Scott's ("Scott") arrest, and videotaping by Plaintiffs Cory Temple ("Temple") and Cheyenne Forbis ("Forbis"). Report and Recommendation, pp. 1-7, Docket No. 36.
In the Report and Recommendation, Judge Bush recommends that Plaintiff Steele's claims based on an alleged lack of probable cause for the traffic stop and an alleged unlawful search of the vehicle incident to the arrest of the passenger survives summary judgment as well as Plaintiff's Scott's claim based on the alleged excessive force applied during his arrest. Because these claims survive summary judgment, Judge Bush also recommends the claims against the municipality and the Chief of Police also survive. Judge Bush further recommends the following claims be dismissed: all of Plaintiffs' RICO claims; Scott's probable cause for arrest claim; Scott's malicious prosecution claim; all of Temple's and Forbis' claims; and all claims against the Coeur d'Alene Police Department. Since Plaintiffs did not file any objections to the findings or recommendations, the Court need not conduct a de novo review of these findings and adopts as its own the reasoning of Judge Bush on those claims recommended to be dismissed.
Defendants object to the Magistrate Judge's failure to recommend summary judgment on the remaining claims. The Court will conduct a de novo review of those claims.
Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure. Rule 56 provides, in pertinent part, that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).
The Supreme Court has made it clear that under Rule 56 summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving party's case and upon which the non-moving party will bear the burden of proof at trial. See, Celotex Corp v. Catrett, 477 U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any essential element, "there can be no `genuine issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.*fn1
Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both "material" and "genuine." An issue is "material" if it affects the outcome of the litigation. An issue, before it may be considered "genuine," must be established by "sufficient evidence supporting the claimed factual dispute . . . to require a jury or judge to resolve the parties' differing versions of the truth at trial." Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. 1975) (quoting First Nat'l Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968)). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib. v. San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371 (9th Cir. 1989).
According to the Ninth Circuit, in order to withstand a motion for summary judgment, a party (1) must make a showing sufficient to establish a genuine issue of fact with respect to any element for which it bears the burden of proof; (2) must show that there is an issue that may reasonably be resolved in favor of either party; and (3) must come forward with more persuasive evidence than ...