Draw v. Nevens et al

Filing 41

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)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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HUBERT W. DRAW,

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Case No. 3:15-cv-00503-MMD-VPC
Plaintiff,

v.
DWIGHT NEVEN, et al.,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
VALERIE P. COOKE

Defendants.

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Before the Court is the Report and Recommendation of United States Magistrate

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Judge Valerie P. Cooke (ECF No. 29) (“R&R”) recommending the granting of Defendants’

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motion to dismiss or, in the alternative, motion for summary judgment (“Motion”) (ECF No.

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18). Plaintiff had until May 2, 2017 to object to the R&R. The Court subsequently granted

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Plaintiff an extension of time until July 28, 2017, to file an objection.1 (ECF No. 39.) To

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date, no objection to the R&R has been filed.

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails

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to object, however, the court is not required to conduct “any review at all . . . of any issue

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed,

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1Plaintiff

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had requested a stay of 15 months, which the Court denied. (ECF Nos.

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the Ninth Circuit has recognized that a district court is not required to review a magistrate

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judge’s report and recommendation where no objections have been filed. See United

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States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review

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employed by the district court when reviewing a report and recommendation to which no

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objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.

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Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that

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district courts are not required to review “any issue that is not the subject of an objection.”).

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Thus, if there is no objection to a magistrate judge’s recommendation, then the court may

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accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226

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(accepting, without review, a magistrate judge’s recommendation to which no objection

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was filed).

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Nevertheless, this Court finds it appropriate to engage in a de novo review to

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determine whether to adopt Magistrate Judge Cooke’s R&R. Upon reviewing the R&R and

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underlying briefs relating to Defendants’ Motion, this Court agrees with the Magistrate

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Judge’s finding that Plaintiff failed to exhaust available administrative remedies.

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Accordingly, the Court will accept and adopt the Magistrate Judge’s R&R in full.

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It is therefore ordered, adjudged and decreed that the Report and Recommendation

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of Magistrate Judge Valerie P. Cooke (ECF No. 29) is accepted and adopted in its entirety.

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It is further ordered that Defendants’ motion to dismiss or, in the alternative, for

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summary judgment (ECF No. 18) is granted. Plaintiff’s claims are dismissed without

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prejudice based on his failure to exhaust his administrative remedies.

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It is further ordered that the Clerk enter judgment and close this case.
DATED THIS 9th day of August 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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