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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 JOHN STEVEN OLAUSEN, Case No. 3:15-cv-00539-MMD-WGC Plaintiff, 10 v. 11 GENE YUP, et al., ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB 12 Defendants. 13 14 Before the Court is the Report and Recommendation of United States Magistrate 15 Judge William G. Cobb (ECF No. 58) (“R&R” or “Recommendation”) relating to 16 Defendant Gene Yup’s Motion for Summary Judgment (“Motion”) (ECF No. 44). Plaintiff 17 had until September 27, 2017, to object to the R&R. To date, no objection to the R&R 18 has been filed. 19 This Court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 21 timely objects to a magistrate judge’s report and recommendation, then the court is 22 required to “make a de novo determination of those portions of the [report and 23 recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). Where a party fails 24 to object, however, the court is not required to conduct “any review at all . . . of any issue 25 that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 26 Indeed, the Ninth Circuit has recognized that a district court is not required to review a 27 magistrate judge’s report and recommendation where no objections have been filed. See 28 United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard 1 of review employed by the district court when reviewing a report and recommendation to 2 which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 3 1226 (D. Ariz. 2003) (reading the Ninth Circuit’s decision in Reyna-Tapia as adopting the 4 view that district courts are not required to review “any issue that is not the subject of an 5 objection.”). Thus, if there is no objection to a magistrate judge’s recommendation, then 6 the court may accept the recommendation without review. See, e.g., Johnstone, 263 F. 7 Supp. 2d at 1226 (accepting, without review, a magistrate judge’s recommendation to 8 which no objection was filed). 9 Nevertheless, this Court finds it appropriate to engage in a de novo review to 10 determine whether to adopt Magistrate Judge Cobb’s Recommendation. The Magistrate 11 Judge found that Plaintiff has failed to exhaust his administrative remedies on his single 12 Eighth Amendment claim of deliberate indifference to a medical need (ECF No. 58). For 13 this reason, the Magistrate Judge recommends granting summary judgment in favor of 14 Defendant Dr. Yup. Upon reviewing the Recommendation and the briefs relating to 15 Defendant’s Motion, the Court agrees with the Magistrate Judge and therefore adopts 16 the R&R in full. 17 It is therefore ordered, adjudged and decreed that the Report and 18 Recommendation of Magistrate Judge William G. Cobb (ECF No. 58) is accepted and 19 adopted in its entirety. It is ordered that Defendant Gene Yup’s Motion for Summary Judgment (ECF No. 20 21 44) is granted. It is further order that the Clerk of Court enter judgment accordingly and close this 22 23 24 case. DATED THIS 23rd day of October 2017. 25 26 27 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 28 2

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