Olausen v. Yup

Filing 59

ORDER that the Report and Recommendation of Magistrate Judge William G. Cobb ECF No. 58 is accepted and adopted; granting ECF No. 44 Motion for Summary Judgment; Clerk directed to enter judgment accordingly and close this case. Signed by Judge Miranda M. Du on 10/23/2017. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN STEVEN OLAUSEN,

Case No. 3:15-cv-00539-MMD-WGC
Plaintiff,

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v.
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GENE YUP, et al.,

ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
WILLIAM G. COBB

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

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Judge William G. Cobb (ECF No. 58) (“R&R” or “Recommendation”) relating to

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Defendant Gene Yup’s Motion for Summary Judgment (“Motion”) (ECF No. 44). Plaintiff

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had until September 27, 2017, to object to the R&R. To date, no objection to the R&R

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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).

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

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

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

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of review employed by the district court when reviewing a report and recommendation to

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which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the

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view that district courts are not required to review “any issue that is not the subject of an

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objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then

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the court may accept the recommendation without review. See, e.g., Johnstone, 263 F.

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Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to

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which no objection 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 Cobb’s Recommendation. The Magistrate

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Judge found that Plaintiff has failed to exhaust his administrative remedies on his single

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Eighth Amendment claim of deliberate indifference to a medical need (ECF No. 58). For

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this reason, the Magistrate Judge recommends granting summary judgment in favor of

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Defendant Dr. Yup. Upon reviewing the Recommendation and the briefs relating to

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Defendant’s Motion, the Court agrees with the Magistrate Judge and therefore adopts

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the R&R in full.

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It

is

therefore

ordered,

adjudged

and

decreed

that

the

Report

and

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Recommendation of Magistrate Judge William G. Cobb (ECF No. 58) is accepted and

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adopted in its entirety.
It is ordered that Defendant Gene Yup’s Motion for Summary Judgment (ECF No.

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44) is granted.
It is further order that the Clerk of Court enter judgment accordingly and close this

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case.
DATED THIS 23rd day of October 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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