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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 HUBERT W. DRAW, 10 11 12 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. 13 14 Before the Court is the Report and Recommendation of United States Magistrate 15 Judge Valerie P. Cooke (ECF No. 29) (“R&R”) recommending the granting of Defendants’ 16 motion to dismiss or, in the alternative, motion for summary judgment (“Motion”) (ECF No. 17 18). Plaintiff had until May 2, 2017 to object to the R&R. The Court subsequently granted 18 Plaintiff an extension of time until July 28, 2017, to file an objection.1 (ECF No. 39.) To 19 date, no objection to the R&R has been filed. 20 This Court “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 22 timely objects to a magistrate judge’s report and recommendation, then the court is 23 required to “make a de novo determination of those portions of the [report and 24 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 25 to object, however, the court is not required to conduct “any review at all . . . of any issue 26 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, 27 28 1Plaintiff 36, 39.) had requested a stay of 15 months, which the Court denied. (ECF Nos. 1 the Ninth Circuit has recognized that a district court is not required to review a magistrate 2 judge’s report and recommendation where no objections have been filed. See United 3 States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review 4 employed by the district court when reviewing a report and recommendation to which no 5 objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. 6 Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the view that 7 district courts are not required to review “any issue that is not the subject of an objection.”). 8 Thus, if there is no objection to a magistrate judge’s recommendation, then the court may 9 accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 10 (accepting, without review, a magistrate judge’s recommendation to which no objection 11 was filed). 12 Nevertheless, this Court finds it appropriate to engage in a de novo review to 13 determine whether to adopt Magistrate Judge Cooke’s R&R. Upon reviewing the R&R and 14 underlying briefs relating to Defendants’ Motion, this Court agrees with the Magistrate 15 Judge’s finding that Plaintiff failed to exhaust available administrative remedies. 16 Accordingly, the Court will accept and adopt the Magistrate Judge’s R&R in full. 17 It is therefore ordered, adjudged and decreed that the Report and Recommendation 18 of Magistrate Judge Valerie P. Cooke (ECF No. 29) is accepted and adopted in its entirety. 19 It is further ordered that Defendants’ motion to dismiss or, in the alternative, for 20 summary judgment (ECF No. 18) is granted. Plaintiff’s claims are dismissed without 21 prejudice based on his failure to exhaust his administrative remedies. 22 23 It is further ordered that the Clerk enter judgment and close this case. DATED THIS 9th day of August 2017. 24 25 26 27 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 28 2

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