Draw v. Nevens et al
ORDER accepting and adopting in full ECF No. 29 Report and Recommendation; granting Defendants' ECF No. 18 Motion to Dismiss, dismissing without prejudice Plaintiff's claims for failure to exhaust administrative remedies; directing Clerk to enter judgment and close case. Signed by Judge Miranda M. Du on 8/9/2017. (Copies have been distributed pursuant to the NEF - KR)
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
HUBERT W. DRAW,
Case No. 3:15-cv-00503-MMD-VPC
DWIGHT NEVEN, et al.,
ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
VALERIE P. COOKE
Before the Court is the Report and Recommendation of United States Magistrate
Judge Valerie P. Cooke (ECF No. 29) (“R&R”) recommending the granting of Defendants’
motion to dismiss or, in the alternative, motion for summary judgment (“Motion”) (ECF No.
18). Plaintiff had until May 2, 2017 to object to the R&R. The Court subsequently granted
Plaintiff an extension of time until July 28, 2017, to file an objection.1 (ECF No. 39.) To
date, no objection to the R&R has been filed.
This 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
timely objects to a magistrate judge’s report and recommendation, then the court is
required to “make a de novo determination of those portions of the [report and
recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails
to object, however, 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). Indeed,
had requested a stay of 15 months, which the Court denied. (ECF Nos.
the Ninth Circuit has recognized that a district court is not required to review a magistrate
judge’s report and recommendation where no objections have been filed. See United
States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review
employed by the district court when reviewing a report and recommendation to which no
objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.
Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that
district courts are not required to review “any issue that is not the subject of an objection.”).
Thus, if there is no objection to a magistrate judge’s recommendation, then the court may
accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226
(accepting, without review, a magistrate judge’s recommendation to which no objection
Nevertheless, this Court finds it appropriate to engage in a de novo review to
determine whether to adopt Magistrate Judge Cooke’s R&R. Upon reviewing the R&R and
underlying briefs relating to Defendants’ Motion, this Court agrees with the Magistrate
Judge’s finding that Plaintiff failed to exhaust available administrative remedies.
Accordingly, the Court will accept and adopt the Magistrate Judge’s R&R in full.
It is therefore ordered, adjudged and decreed that the Report and Recommendation
of Magistrate Judge Valerie P. Cooke (ECF No. 29) is accepted and adopted in its entirety.
It is further ordered that Defendants’ motion to dismiss or, in the alternative, for
summary judgment (ECF No. 18) is granted. Plaintiff’s claims are dismissed without
prejudice based on his failure to exhaust his administrative remedies.
It is further ordered that the Clerk enter judgment and close this case.
DATED THIS 9th day of August 2017.
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE
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