McDaniel v. Ely State Prison et al

Filing 41

ORDER that the R&R (ECF No. 40 ) is accepted and adopted in its entirety; this action is dismissed with prejudice; Defendants' motion to seal (ECF No. 33 ) is granted and Defendants' motion for summary judgment (ECF No. 32 ) is denied as moot. Signed by Judge Miranda M. Du on 6/8/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES R. MCDANIEL, JR.,

Case No. 3:16-cv-00259-MMD-WGC
Plaintiff,

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v.
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ELY STATE PRISON, 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 (“R&R”) recommending dismissal of this action with prejudice for

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Plaintiff’s failure to prosecute his case or comply with a court order. (ECF No. 40.) Plaintiff

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had until April 11, 2018, to object. (Id. at 4.) To date, no objection has been filed. For the

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following reasons, the Court accepts and adopts the R&R.

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

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determine whether to adopt the Magistrate Judge’s R&R. The Magistrate Judge

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recommended dismissing Plaintiff’s action with prejudice because Plaintiff failed to comply

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with the Court’s order requiring Plaintiff to file a notice of intent to prosecute the action as

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well as a response to Defendants’ motion for summary judgment. (See ECF No. 40 at 3.)

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The Court had previously advised Plaintiff that failure to file a notice of intent and a

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response would result in a recommendation that his claim be dismissed with prejudice.

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(ECF No. 39.) Plaintiff has not filed any documents in this case since May 4, 2017, even

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though the Magistrate Judge’s R&R was issued on March 28, 2018, and Defendants’

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motion for summary judgment was filed on November 16, 2017. (ECF Nos. 23, 32, 40.)

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Accordingly, the Court finds good cause to 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 William G. Cobb (ECF No. 40) is accepted and adopted in its entirety.

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It is further ordered that this action is dismissed with prejudice.

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It is further ordered that Defendants’ motion to seal (ECF No. 33) is granted

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because Defendants have demonstrated compelling reasons to seal Plaintiff’s medical

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records.
It is further ordered that Defendants’ motion for summary judgment (ECF No. 32)

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is denied as moot.

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///
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DATED THIS 8th day of June 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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