Fifer v. Phoenix, City of et al

Filing 20

ORDER - IT IS ORDERED that the Magistrate Judge's Report and Recommendation (Doc. 16 ) is ACCEPTED in its entirety. Signed by Judge Robert C Broomfield on 4/20/11. (SAT)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Richard Theodore Fifer, 13 Plaintiff, 14 vs. 15 City of Phoenix, et al. 16 Defendants. ) ) ) ) ) ) ) ) ) ) No. CIV 10-1727-PHX-RCB (JRI) O R D E R 17 18 On February 16, 2011, the Magistrate Judge filed an Order and 19 Report and Recommendation (“R&R”) (Doc. 16). 20 granted plaintiff’s motion to file a second amended complaint 21 (“SAC”),1 and recommended that counts II and III of that SAC be The Magistrate Judge 22 23 24 25 26 27 28 1 For clarification, the court notes that the Magistrate Judge’s Order and R&R refers to “Plaintiff’s Motion to Amend, filed January 27, 2011 (Doc. 13).” Doc. 16 at 1:11-12 (emphasis added). Because that motion was unsigned, the Magistrate Judge properly ordered plaintiff to file a signed copy of that motion within 14 days, “after which th[at] motion [doc. 13) w[ould] be stricken.” Doc. 14 at 1:23-25. Plaintiff complied with that order and on February 11, 2011, timely filed a signed “Motion for Leave to Submit Second Amended Complaint” (doc. 15). That motion is identical to docket 13, except it is signed and does not include a copy of the proposed SAC, which had previously been filed as an attachment to the original motion to amend (doc. 13-1). In light of this history, although the Magistrate Judge’s order refers to docket 13 when he granted plaintiff’s motion to amend, clearly he meant to refer to docket 15 - the signed motion to amend. In accordance with the Magistrate 1 dismissed without prejudice as to defendant City of Phoenix. 2 (Doc. 16) at 5:24-26. 3 McCraw, Friedman, and Maricopa County be required to answer counts 4 I and IV of the SAC. 5 R&R He further recommended that defendants Id. at 5:27-6:1. In that R&R, the Magistrate Judge specifically instructed the 6 parties that, pursuant to Fed. R. Civ. P. 72, they “shall have 7 fourteen (14) days from the date of service of a copy of this 8 recommendation within which to file specific written objections 9 with the Court. Id. at 7:20-22. None of the parties have filed 10 objections to that R&R, and the fourteen day time frame for so 11 doing has passed.2 12 When reviewing an R&R issued by a Magistrate Judge, this court 13 “may accept, reject, or modify, in whole or in part, the findings 14 or recommendations made by the magistrate judge.” 15 § 636(b)(1). 16 a de novo review of the Magistrate Judge’s findings and 17 recommendations. 18 2005). 19 [Federal Magistrates Act] requires a district judge to review, de 20 novo, findings and recommendations that the parties themselves 21 accept as correct.” 22 1121 (9th Cir. 2003) (en banc) (citations omitted). 28 U.S.C. Only if an objection is made, must this court conduct Wang v. Masaitis, 416 F.3d 992, 1000 (9th Cir. That is because “[n]either the Constitution nor the United States v. Reyna-Tapia, 328 F.3d 1114, Indeed, 23 24 25 26 27 28 Judge’s order, that motion has been granted. Doc. 16 at 1:5:18-19. The docket should so reflect. Additionally, evidently because plaintiff did not include a copy of the SAC as an attachment to his signed motion to amend, the Magistrate Judge ordered the filing of docket 13-1 -- the proposed SAC which was attached to the unsigned motion. Id. at 5:20-21. That document serves as the SAC and was the subject of the pending R&R. 2 This takes into account the additional three days allotted to plaintiff in accordance with Fed. R. Civ. P. 6(d) because, as the docket sheet indicates, the R&R was served upon him by mail. -2- 1 construing the Federal Magistrates Act, the Supreme Court has found 2 that that “statute does not on its face require any review at all, 3 by either the district court or the court of appeals, of any issue 4 that is not the subject of an objection.” 5 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). 6 the foregoing authority, except to clarify the procedural posture 7 of this action, the court has not conducted a review of the pending 8 R&R because no objections were filed. 9 10 11 12 Thomas v. Arn, 474 U.S. Consistent with Accordingly, IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. 16) is ACCEPTED in its entirety. DATED this 20th day of April, 2011. 13 14 15 16 17 18 19 20 21 Copies to plaintiff pro se and counsel of record 22 23 24 25 26 27 28 -3-

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