Scott v. NaphCare

Opinion

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6 JAMES EDWARD SCOTT, Case No. 3:19-cv-00347-MMD-WGC

7 Plaintiff, ORDER v. 8 NAPHCARE, et al., 9 Defendants. 10 11 Pro se Plaintiff James Scott brings this action under 42 U.S.C. § 1983. Before the 12 Court is the Report and Recommendation (“R&R” or “Recommendation”) of United States 13 Magistrate Judge William G. Cobb (ECF No. 48), recommending that Defendants Dr. 14 Larry Williamson’s and Dr. Emily Feely’s motions to dismiss (ECF Nos. 19, 36) be denied, 15 a notice of intent to dismiss Dr. Karen be issued pursuant to Rule 4(m) of the Federal 16 Rules of Civil Procedure, and that the unidentified Doe defendants be dismissed without 17 prejudice. The parties had until January 18, 2021 to file an objection. To date, no objection 18 to the R&R has been filed. For this reason, and as explained below, the Court adopts the 19 R&R, and will deny the motions to dismiss, issue a notice of intent to dismiss Dr. Karen, 20 and the Doe defendants are dismissed from this action. 21 The Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party 23 fails to object to a magistrate judge’s recommendation, the Court is not required to 24 conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas 25 v. Arn, 474 U.S. 140, 149 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 26 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and 27 recommendations is required if, but only if, one or both parties file objections to the 1 || Committee Notes (1983) (providing that the Court “need only satisfy itself that there is no 2 || clear error on the face of the record in order to accept the recommendation.”). 3 Because there is no objection, the Court need not conduct de novo review, and is 4 || satisfied Judge Cobb did not clearly err. Here, Judge Cobb recommends that Defendants’ 5 || motions to dismiss be denied because it is not clear from Plaintiff's complaint that he 6 || failed to exhaust his administrative remedies. (ECF No. 48 at 3-6.) Additionally, Judge 7 || Cobb recommends the Court issue a notice of intent to dismiss Dr. Karen as she has not 8 || been served, and that the Doe defendants be dismissed as Plaintiff has not sought to join 9 || any identified individuals in place of the Doe defendants. (/d. at 3.) The Court agrees with 10 || Judge Cobb. Having reviewed the R&R and the record in this case, the Court will adopt 11 || the R&R in full. 12 It is therefore ordered that Judge Cobb’s Report and Recommendation (ECF No. 13 || 48) is accepted and adopted in full. 14 It is further ordered that Defendant Dr. Larry Williamson’s motion to dismiss (ECF 15 || No. 19) is denied. 16 It is further ordered that Defendant Dr. Emily Feely’s motion to dismiss (ECF No. 17 || 36) is denied. 18 It is further ordered that the Clerk of Court issue Fed. R. Civ. P. 4(m) notice that 19 || this action may be dismissed without prejudice as to Dr. Karen unless proof of service is 20 || filed with the Court. 21 DATED THIS 27" Day of January 2021. 22 MN CHIEF UNITED STATES DISTRICT JUDGE

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