DeVault v. Maricopa, County of et al

Filing 36

ORDER The Report and Recommendation of the Magistrate Judge (Doc. 35 ) is accepted. Defendants' Motion to Dismiss (Doc. 28 ) is granted. Plaintiff's Motion to Strike (Doc. 31 ) is denied. Plaintiff's section 1983 claim (Count I) is dismissed for failure to exhaust administrative remedies and her state-law claim (Count II) is remanded to the Maricopa County Superior Court. The Clerk of Court must terminate this action. Signed by Judge Robert C Broomfield on 3/7/2012. (Attachments: # 1 Remand Letter)(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marissa DeVault,
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Plaintiff,
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vs.
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Maricopa County, et al.,
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Defendants,
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No. CV 11-1423-PHX-RCB (MEA)
ORDER

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Pending before the Court is Magistrate Judge Aspey’s Report and Recommendation

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as to Defendants’ Motion to Dismiss and Plaintiff’s Motion to Strike (Docs. 35, 28, 31). The

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Magistrate Judge recommended that (1) the motion to dismiss be granted with respect to

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Plaintiff’s 42 U.S.C. § 1983 claim, (2) Plaintiff’s state-law claim be remanded to the

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Maricopa County Superior Court, and (3) Plaintiff’s motion to strike be denied. The

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Magistrate Judge further advised the parties that they had fourteen days to file objections to

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the R&R (Doc. 35 at 15 (citing Federal Rule of Civil Procedure 72(b)). No objections were

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filed.

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Because the parties did not file objections, the Court need not review any of the

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Magistrate Judge’s determinations on dispositive matters. See 28 U.S.C. § 636(b)(1); Fed.

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R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 112 (9th Cir. 2003); Thomas

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v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not . . . require any review at all

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. . . of any issue that is not the subject of an objection.”). The absence of a timely objection

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also means that error may not be assigned on appeal to any defect in the Magistrate Judge’s

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ruling on any non-dispositive matters. Fed. R. Civ. P. 72(a) (“A party may serve and file

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objections to the order within 14 days after being served with a copy [of the magistrate’s

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order]. A party may not assign as error a defect in the order not timely objected to.”);

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Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996); Philipps v. GMC, 289

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F.3d 1117, 1120-21 (9th Cir. 2002).

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Notwithstanding the absence of an objection, the Court has reviewed the R&R and

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finds that it is well taken because the evidence establishes that Plaintiff did not exhaust her

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administrative remedies and did not establish that any remedy was unavailable. More

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specifically, Plaintiff introduced no evidence that she could not pursue the jail’s grievance

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procedure upon her release from the hospital. And her belief there was nothing to gain from

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pursuing the grievance procedure does not excuse her failure to do so. Porter v. Nussle, 534

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U.S. 516, 523 (2002). The Court will therefore accept the R&R, dismiss Plaintiff’s § 1983

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claim, and remand Plaintiff’s state-law claim to the Maricopa County Superior Court.

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IT IS ORDERED:

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(1) The Report and Recommendation of the Magistrate Judge (Doc. 35) is accepted.

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(2) Defendants’ Motion to Dismiss (Doc. 28) is granted.

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(3) Plaintiff’s Motion to Strike (Doc. 31) is denied.

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(4) Plaintiff’s section 1983 claim (Count I) is dismissed for failure to exhaust

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administrative remedies and her state-law claim (Count II) is remanded to the Maricopa

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County Superior Court.

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(5) The Clerk of Court must terminate this action.
DATED this 7th day of March, 2012.