Garcia v. Arizona, State of et al

Filing 11

REPORT AND RECOMMENDATION re 1 Complaint : Recommending that Complaint be Dismissed. Parties have 10 days from the date of service of this recommendation to file specific written objections with the District Court. Failure to do so may be considered a waiver of a party's right to de movo consideration of the issues. Signed by Magistrate Judge Jacqueline J Marshall on 10/9/08. (LSI, )

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. State of Arizona, et al., Defendants. Guillermo Garcia, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-0399-PHX-NVW (JM) REPORT AND RECOMMENDATION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA In accordance with 28 U.S.C. 636(b)(1)(B) and the Local Rules of Practice of the United States District Court for the District of Arizona, this case was referred to the Magistrate Judge for all pretrial proceedings and report and recommendation. Plaintiff Guillermo Garcia has failed to timely return the service packet, including summonses and waivers of service. Accordingly, the Magistrate Judge recommends that the District Court, after independent review of the record, dismiss the Complaint [Docket No. 1] with prejudice due to the Plaintiff's failure to comply with the Court's orders and failure to prosecute this action. In a document filed on July 21, 2008, Plaintiff indicated that, after some delay due to his transfer, he had received the summonses, and stated that, "I will send the summon [sic] papers this week." Docket No. 10. The record reflects that the service packets, which were ordered to be returned by August 1, 2008, have yet to be returned to the Clerk for service. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff's failure to return the summons and request for waiver forms puts him in violation of the Court's order filed on June 16, 2008. In that Order, Plaintiff was directed to return the forms withing 30 days of the filing date of the order, or by July 16, 2008. Docket No. 7, p. 5. As indicated above, an entry in the docket reflects that the due date was later extended until August 1, 2008. No other extensions appear in the record and Plaintiff indicated that he had received the forms by at least July 21, 2008. Plaintiff has clearly failed to comply with the Court's order to timely return the summons and waiver forms. In the same Order directing Plaintiff to return the documents to the Clerk for service by the Marshals, Plaintiff was provided the following warning: If Plaintiff fails to timely comply with every provision of this Order . . . the court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). Docket No. 7, p. 4. Based on this warning, and the Plaintiff's failure to return the forms and to prosecute this action, the Magistrate Judge recommends that this matter be dismissed with prejudice is appropriate. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001) (dismissal for failure to prosecute acts as an adjudication on the merits). Recommendation Based on the foregoing, the Magistrate Judge recommends that the District Court, after its independent review, issue an Order dismissing this matter with prejudice. This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. However, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have ten (10) days within which to file a response to the objections. If any objections are filed, this action should be designated case number: CV 08-399-PHXNVW. Failure to timely file objections to any factual or legal determination of the -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). DATED this 9th day of October, 2008. -3-

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