United States District Court, D. Nevada
ORDER ACCEPTING AND ADOPTING IN PART REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE WILLIAM G. COBB
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE
this Court is the Report and Recommendation of United States
Magistrate Judge William G. Cobb (“R&R” or
“Recommendation”) relating to Plaintiff's
motion for leave to amend complaint (ECF No. 23). (ECF No.
27.) The parties had until November 14, 2017, to object to
the R&R. To date, no objection was filed.
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). Where a party fails
to object, however, the court is not required to conduct
“any review at all . . . of any issue that is not the
subject of an objection.” Thomas v. Arn, 474
U.S. 140, 149 (1985). Indeed, the Ninth Circuit has
recognized that a district court is not required to review a
magistrate judge's report and recommendation where no
objections have been filed. See United States v.
Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding
the standard of review employed by the district court when
reviewing a report and recommendation to which no objections
were made); see also Schmidt v. Johnstone, 263
F.Supp.2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth
Circuit's decision in Reyna-Tapia as adopting
the view that district courts are not required to review
“any issue that is not the subject of an
objection.”). Thus, if there is no objection to a
magistrate judge's recommendation, then the court may
accept the recommendation without review. See, e.g.,
Johnstone, 263 F.Supp.2d at 1226 (accepting, without
review, a magistrate judge's recommendation to which no
objection was filed).
this Court has conducted a de novo review to
determine whether to adopt the R&R. The R&R
recommends granting Plaintiff leave to amend to assert claims
for violation of the Americans with Disabilities Act
(“ADA”) and the Eighth Amendment for deliberate
indifference to serious medical needs. (ECF No. 27.) The
R&R recommends dismissing the procedural due process
claims and the claims for medical malpractice without leave
to amend. The R&R states that dismissal of the medical
malpractice claim should be without leave to amend, and the
concluding paragraph references dismissal of these claims
with prejudice. (Id. at 4.) Having reviewed the
R&R and the proposed amended complaint, the Court
generally agrees with the Magistrate Judge's
recommendation. However, to the extent the R&R recommends
dismissing the medical malpractice claims with prejudice, the
Court disagrees. The Court dismisses these claims without
prejudice and without leave to amend. See Williams v.
Sandoval, 3:16-cv-00525-MMD-VPC (ECF No. 8 at 8-10)
(D.Nev. Nov. 20, 2017) (this Court found that where a
plaintiff who asserts professional negligence claim fails to
file with the action a supporting affidavit from a medical
expert, the claim should be dismissed without prejudice and
without leave to amend).
therefore ordered that the Report and Recommendation (ECF No.
27) is adopted.
further ordered that Plaintiff's motion for leave to
amend complaint (ECF No. 23) is granted in part and denied in
part as follows.:
(a) Plaintiff is permitted to proceed with his claims under
the ADA and the Eighth Amendment against Defendants Gedney,
Moyle, Baca, Murphy, Buencamino and Aranas.
(b) The Due Process Clause claims are dismissed with
(c) The state law claims for medical malpractice are
dismissed without prejudice and without leave to amend.
further ordered that the Clerk of Court detach and file the
first amended complaint (ECF No. 23 at 3-17).
further ordered that the Attorney General's Office is
directed to file a notice within twenty-one (21) days of this
order advising the Court and Plaintiff of: (a) the names of
the defendants for whom it accepts service; (b) the names of
the defendants for whom it does not accept service. As to
those defendants for whom it does not accept service, the
Attorney General's Office must file the last known
address(es) under seal, but will not serve the inmate
Plaintiff with such information. If the last known address of
the defendant(s) is a post office box, the Attorney
General's Office will attempt to obtain and provide the
last known physical address(es).
further ordered that, if service cannot be accepted for any
of the named defendant(s), Plaintiff must file a motion
identifying the unserved defendant(s), and requesting
issuance of a summons. For the defendant(s) as to which the
Attorney General's Office has not provided
last-known-address information, Plaintiff is required to
supply the full name and address for the defendant(s).
further ordered that if the Attorney General's Office
accepts service of process for any named defendant(s), such
defendants are required to file and serve an answer or other
responsive pleading within twenty-one (21) days of the date
it files a notice of acceptance of service.
further ordered that, from this point forward, Plaintiff must
serve upon defendant(s), or if an appearance has been entered
by counsel, upon the attorney(s), a copy of every pleading,
motion or other document submitted for consideration by the
court. Plaintiff must include with the original document
submitted for filing a certificate stating the date that a
true and correct copy of the document was mailed or
electronically filed to the defendants or counsel for the
defendants. If counsel has entered a notice of appearance,
Plaintiff must direct service to the individual attorney
named in the notice of appearance, at the physical or
electronic address ...