1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

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6 ROBERTO DURAND, Case No. 3:19-cv-00460-ART-CLB

7 Plaintiff, ORDER v. 8 STATE OF NEVADA NDOC, et al., 9 Defendants. 10 11 Pro se Plaintiff Roberto Durand (“Durand”) brings this civil rights action 12 against Defendant Jessica Lucchesi (“Lucchesi”). Before the Court is the Report 13 and Recommendation (“R&R” or “Recommendation”) of United States Magistrate 14 Judge Carla Baldwin (ECF No. 67), recommending that this Court enter an order: 15 granting Defendant’s motion for summary judgment. (ECF Nos. 63, 65.)1 Plaintiff 16 filed an objection. (ECF No. 68.) As explained below, the Court adopts the R&R. 17 The Court “may accept, reject, or modify, in whole or in part, the findings 18 or recommendations made by the magistrate judge.”

(b)(1). Where 19 a party fails to object to a magistrate judge’s recommendation, the Court is not 20 required to conduct “any review at all . . . of any issue that is not the subject of 21 an objection.” Thomas v. Arn,

(1985); see also United States v. 22 Reyna-Tapia,

(9th Cir. 2003) (“De novo review of the 23 magistrate judges’ findings and recommendations is required if, but only if, one 24 or both parties file objections to the findings and recommendations.”) (emphasis 25 in original); Fed. R. Civ. P. 72, Advisory Committee Notes (1983) (providing that 26 the Court “need only satisfy itself that there is no clear error on the face of the 27 record in order to accept the recommendation.”). 28 1 Plaintiff did not oppose the motion for summary judgment, even though 2 the Court sua sponte granted him an extension to oppose the motion. (ECF No. 3 61.) Plaintiff’s objection to the R&R is difficult to understand. He states, “I do 4 have had exhaustions grievance” but also says that the judge stated he did not 5 need to do exhaustion. He also states he will send a notice of appeal and there 6 is no summary judgment. (ECF No. 68). Functionally, Plaintiff provides no legal 7 or factual basis to support his objection. 8 Because there functionally is no objection, the Court need not conduct de 9 novo review, and is satisfied Magistrate Judge Baldwin did not clearly err. Here, 10 on October 2, 220, Durand filed his first amended complaint (“FAC”), which is 11 the operative complaint in this case. (ECF No. 12.) On May 26, 2021, the District 12 Court screened the FAC, and allowed Durand to proceed on a First Amendment 13 retaliation claim against Lucchesi and an Eighth Amendment deliberate 14 indifference to serious medical needs claim against Lucchesi. (ECF No. 16.) 15 Durand’s FAC alleges that he filed a grievance against Lucchesi on October 29, 16 2019, and Lucchesi began depriving him of medications including pain 17 medication and a boost drink in retaliation for filing the grievance and he 18 suffered pain as a result. (ECF No. 12.) 19 On February 28, 2022, Lucchesi filed her notice of acceptance of service. 20 (ECF No. 30.) On April 29, 2022, in lieu of filing answer, Lucchesi filed a motion 21 to dismiss the FAC. (ECF No. 32.) On June 13, 2022, the Court ordered the 22 parties to attend a case management conference (“CMC”). (ECF No. 48.) At the 23 CMC held on July 11, 2022, the Court denied the motion to dismiss and further 24 bifurcated discovery in this matter as defense counsel represented that a defense 25 of exhaustion applied to all the claims in the case. (ECF No. 56.) 26 On December 8, 2022, Lucchesi filed her motion for summary judgment 27 on the sole basis of exhaustion. (ECF No. 63.) Durand did not oppose or 28 otherwise respond to the motion. 1 As the R&R explains, The PLRA requires “proper exhaustion” of an 2 inmate’s claims. Woodford v. Ngo,

(2006). Proper exhaustion 3 means an inmate must “use all steps the prison holds out, enabling the prison 4 to reach the merits of the issue.” Griffin v. Arpaio,

(9th Cir. 5 2009) (citing Woodford,

). Thus, exhaustion “demands compliance 6 with an agency’s deadlines and other critical procedural rules because no 7 adjudication system can function effectively without imposing some orderly 8 structure on the course of its proceedings.” Woodford, 548 U.S. at 90–91. 9 A motion for summary judgment will typically be the appropriate vehicle 10 to determine whether an inmate has properly exhausted administrative 11 remedies. Albino v. Baca,

(9th Cir. 2014). “If undisputed 12 evidence viewed in the light most favorable to the prisoner shows a failure to 13 exhaust, a defendant is entitled to summary judgment under Rule 56. 14 Failure to exhaust is an affirmative defense. Jones v. Bock,

, 15 216 (2007). The defendant bears the burden of proving that an available 16 administrative remedy was unexhausted by the inmate. Albino,

1172. If the defendant makes such a showing, the burden shifts to the inmate 18 to “show there is something in his particular case that made the existing and 19 generally available administrative remedies effectively unavailable to him by 20 ‘showing that the local remedies were ineffective, unobtainable, unduly 21 prolonged, inadequate, or obviously futile.’” Williams v. Paramo,

, 22 1191 (9th Cir. 2015) (quoting Albino,

). 23 Lucchesi provided evidence that Durand failed to appeal all applicable 24 grievances past the informal level to the first level and, therefore, failed to 25 properly exhaust his administrative remedies. (ECF No. 63.) The burden then 26 shifted to Durand “to come forward with evidence showing that there is 27 something in his particular case that made the existing and generally available 28 administrative remedies effectively unavailable to him.” Albino,

1 || (citing Hilao v. Estate of Marcos,

, 778 n. 5 (9th Cir. 1996)). However, 2 || Durand did not file an opposition or response to the motion for summary 3 || judgment. As such, Durand failed to provide any evidence to show that 4 || administrative remedies were unavailable to him. Because Durand presented no 5 || evidence that administrative remedies were effectively “unavailable,” Judge 6 || Baldwin concluded that Durand failed to exhaust available administrative 7 || remedies prior to filing this action as to his First Amendment retaliation and 8 || Eighth Amendment deliberate indifference to serious medical needs claims. 9 || Therefore, Judge Baldwin recommended summary judgment be granted in 10 || Lucchesi’s favor. 11 Having reviewed the R&R and the record in this case, the Court will adopt 12 || the R&R in full. 13 IT IS THEREFORE ORDERED that Magistrate Judge Baldwin’s Report and 14 || Recommendation (ECF No. 67) is accepted and adopted in full. 15 IT IS FURTHER ORDERED that Defendant’s motion for summary 16 || judgment (ECF No. 63) is GRANTED; 17 IT IS FURTHER ORDERED that the Clerk ENTER JUDGMENT in favor of 18 || Defendants and CLOSE this case. 19 20 DATED THIS 23rd Day of June 2023. 21 22 Yo floss dem 23 ANNE R. TRAUM UNITED STATES DISTRICT JUDGE

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