2 DISTRICT OF NEVADA

3 ZAFFERINE AMIT MCGILBRA, Case No. 3:22-cv-00245-ART-CSD 4 Plaintiff, ORDER 5 v.

6 WASHOE COUNTY, et al.,

7 Defendants.

8 9 I. SUMMARY 10 Pro se Plaintiff Zafferine Amit McGilbra brings this action under 42 U.S.C. 11 § 1983 against Defendant Sheriff Darin Balaam and other Doe Defendants 12 alleging two Fourteenth Amendment claims arising from Plaintiff’s time at the 13 Washoe County Detention Facility: 1) a conditions of confinement claims based 14 on Defendant Balaam and other’s alleged failure to require staff to wear masks 15 and use hand sanitizer during the COVID-19 pandemic; and 2) a denial of 16 adequate medical care claim based on Doe Defendants’ alleged failure to allow 17 him to see a physician. Plaintiff did not timely substitute named Defendants in 18 place of Doe Defendants, so the only remaining claim is the conditions of 19 confinement claim against Defendant Balaam. 20 Before the Court is a Report and Recommendation (“R&R” or 21 “Recommendation”) of United States Magistrate Judge Craig S. Denney (ECF No. 22 53), recommending the Court grant Defendant’s Motion for Summary Judgment 23 based on failure to exhaust (ECF No. 30). Plaintiff filed an objection to the R&R 24 (ECF No. 58 (“Objection”)), and Defendant responded (ECF No. 59). Because the 25 Court agrees with Judge Denney’s analysis as to Defendant’s Motion, the Court 26 will adopt the R&R in full. Accordingly, the Court will grant Defendant’s Motion 27 for Summary Judgment. 28 2 The Court incorporates by reference Judge Denney’s recitation of the 3 relevant factual background and procedural history, which the Court adopts from 4 the R&R. (ECF No. 53 at 1-2.) 5 III. LEGAL STANDARD 6 This Court “may accept, reject, or modify, in whole or in part, the findings 7 or recommendations made by the magistrate judge.”

(b)(1). Where 8 a party timely objects to a magistrate judge’s report and recommendation, then 9 the Court is required to “make a de novo determination of those portions of the 10 [report and recommendation] to which objection is made.”

Where a party fails 11 to object to a magistrate judge’s recommendation, the Court is not required to 12 conduct “any review at all . . . of any issue that is not the subject of an objection.” 13 Thomas v. Arn,

(1985); see also United States v. Reyna-Tapia, 14

(9th Cir. 2003) (“De novo review of the magistrate judges’ 15 findings and recommendations is required if, but only if, one or both parties file 16 objections to the findings and recommendations.”) (emphasis in original); Fed. R. 17 Civ. P. 72, Advisory Committee Notes (1983) (providing that the Court “need only 18 satisfy itself that there is no clear error on the face of the record in order to accept 19 the recommendation.”). 20 Here, the Court’s review is de novo on the issues raised in Plaintiff’s 21 Objection. In his Objection, Plaintiff argues that Judge Denney incorrectly 22 determined that he failed to exhaust administrative remedies for his claim. 23 IV. DISCUSSION 24 For the failure to exhaust defense, a defendant’s burden is to prove (1) there 25 was an available administrative remedy, and (2) plaintiff did not exhaust that 26 remedy. Albino v. Baca,

(9th Cir. 2014). The burden shifts 27 to the plaintiff “to come forward with evidence showing that there is something 28 2 administrative remedies effectively unavailable to him.”

3 Here, Plaintiff does not argue that administrative remedies were 4 unavailable to him. Instead, Plaintiff contends that he exhausted his 5 administrative remedies and Judge Denney incorrectly concluded otherwise. The 6 Court finds that Judge Denney correctly concluded that Plaintiff failed to exhaust 7 his administrative remedies. 8 Plaintiff’s conditions of confinement claim is based on his allegation that 9 Defendant Balaam failed to require jail staff to wear masks and sanitize their 10 hands when interacting with inmates during the COVID-19 pandemic. (ECF No. 11 11 at 6.) The record reflects that Plaintiff never filed a grievance referencing those 12 complaints. Plaintiff argues that a grievance requesting that jail staff test new 13 people in his unit was sufficient to exhaust his claim in this case, but this 14 grievance did not put the jail “on adequate notice of the problem for which the 15 prisoner seeks redress.” Sapp v. Kimbrell,

(9th Cir. 2010). The 16 Court therefore agrees with Judge Denney and finds that Plaintiff failed to 17 administratively exhaust his claim. 18 V. CONCLUSION 19 It is therefore ordered that Plaintiff’s Objection (ECF No. 58) to the Report 20 and Recommendation of U.S. Magistrate Judge Craig S. Denney is overruled. The 21 Report and Recommendation (ECF No. 53) is therefore adopted in full. 22 It is further ordered that Defendant’s Motion for Summary Judgment (ECF 23 No. 30) is GRANTED. 24 It is further ordered that Plaintiff’s sur-reply is stricken (ECF No. 43). 25 It is further ordered that Plaintiff’s request under Rule 56(d) is denied. 26 It is further ordered that the Fourteenth Amendment conditions of 27 confinement claim against the John/Jane Doe NaphCare supervisor is 28 DISMISSED without prejudice. 1 It is further ordered that the Fourteenth Amendment inadequate medical 2 || care claim is DISMISSED without prejudice. 3 It is further ordered that the Clerk ENTER JUDGMENT in favor of 4 || Defendant and CLOSE this case. 5 6 DATED THIS 29th day of March 2024. 7 8 vs Posed de 9 ANNE R. TRAUM 10 UNITED STATES DISTRICT JUDGE

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