1

2

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 TROY EMANUEL, JR., Case No. 3:23-cv-00564-MMD-CSD

7 Plaintiff, ORDER v. 8 COOKE, et al., 9 Defendants. 10 11 Pro se Plaintiff Troy Emanuel, Jr., who is currently in the custody of the Nevada 12 Department of Corrections (“NDOC”), brings Eighth Amendment claims and a retaliation 13 claim under

. (ECF No. 52 at 1.) Before the Court is the Report and 14 Recommendation (“R&R”) of United States Magistrate Judge Craig S. Denney, 15 recommending that the Court grant Defendants’ motion for summary judgment (ECF No. 16 68 (“Motion”)) because Plaintiff failed to exhaust his administrative remedies before 17 bringing this action.1 (ECF No. 81.) The parties had until September 4, 2025 to file an 18 objection. To date, no objection has been filed. 19 Because there is no objection, the Court need not conduct de novo review, and is 20 satisfied that Judge Denney did not clearly err. See United States v. Reyna-Tapia, 328

, 1116 (9th Cir. 2003) (“De novo review of the magistrate judges’ findings and 22 recommendations is required if, but only if, one or both parties file objections to the 23 findings and recommendations.”). Judge Denney reviewed Plaintiff’s grievance history 24 and found undisputed evidence that Plaintiff filed this action before the deadline for a 25 response to his second level grievance under NDOC’s Administrative Regulation 740. 26 (ECF No. 81 at 5-8.) Judge Denney thus found that Defendants met their burden to show 27

28 1Plaintiff opposed the Motion (ECF No. 73) and Defendants replied (ECF No. 79). 1 Plaintiff did not exhaust available administrative remedies, and Plaintiff did not offer 2 || evidence to show that administrative remedies were not available to him.? (/d.) Having 3 || reviewed the briefs relating to the Motion, the Court finds that Judge Denney did not 4 || clearly err. Accordingly, the Court adopts the R&R in full. 5 It is therefore ordered that Judge Denney’s R&R (ECF No. 81) is accepted and 6 || adopted in full. 7 It is further ordered that Defendants’ motion for summary judgment (ECF No. 68) 8 || is granted. 9 The Clerk of Court is directed to enter judgment in favor of Defendants and close 10 || this case. 11 DATED THIS 3% Day of October 2025. 12 13 14 MIRANDA M. DU 15 UNITED STATES DISTRICT JUDGE

16 17 18 19 20 21 22 ?The failure to exhaust administrative remedies is “‘an affirmative defense the 24 || defendant must plead and prove.” Albino v. Baca,

(9th Cir. 2014) (quoting Jones v. Bock,

(2007)). Administrative exhaustion is subject to a burden-shifting analysis. See

“If undisputed evidence viewed in the lig 25 bject to a burd hifti lysis. See

“If undisputed evid iewed in the light 26 most favorable to the prisoner shows a failure to exhaust, a defendant is entitled to summary judgment under Rule 56.” /d. Once a defendant demonstrates that a plaintiff did 97 || not exhaust available administrative remedies, the burden shifts to the plaintiff to present evidence “showing that there is something in his particular case that made the existing 28 || and generally available administrative remedies effectively unavailable to him.” /d. at 1172 (citing Hilao v. Estate of Marcos,

, 778 n. 5 (9th Cir. 1996)).