Crago v. Clark et al

Filing 85

MEMORANDUM OF DECISION AND ORDER ADOPTING 82 Report and Recommendation of the Magistrate Judge. Defendants Clark and Jorgenson are hereby dismissed without prejudice. The Clerk shall enter judgment in favorof Defendants and terminate this action. Signed by Senior Judge Stephen M McNamee on 4/26/13. (LSP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Earl Felton Crago, Jr.,

10
11

)
)
)
)
)
)
)
)
)
)
)
)

Petitioner,
vs.

12
Charles L. Ryan, et al.,
13
Respondents.
14

No. CV-11-2368-PHX-SMM (JFM)

MEMORANDUM OF DECISION AND
ORDER

15
16

Pending before the Court is Magistrate Judge James F. Metcalf’s Report and

17

Recommendation advising this Court that Defendants Clark and Jorgenson be dismissed

18

without prejudice from Plaintiff’s Second Amended Complaint. (Doc. 82.) Petitioner has

19

filed no objections to the Report and Recommendation. The Court will affirm Judge

20

Metcalf’s Report and Recommendation.

21

STANDARD OF REVIEW

22

When reviewing a Magistrate Judge’s Report and Recommendation, this Court must

23

“make a de novo determination of those portions of the report . . . to which objection is

24

made,” and “may accept, reject, or modify, in whole or in part, the findings or

25

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Baxter

26

v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch.

27

Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge’s

28

recommendation relieves the Court of conducting de novo review of the Magistrate Judge’s

1

factual findings; the Court then may decide the dispositive motion on the applicable law.

2

Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States

3

Dist. Court, 501 F.2d 196 (9th Cir. 1974)).

4

By failing to object to a Report and Recommendation, a party waives its right to

5

challenge the Magistrate’s factual findings, but not necessarily the Magistrate's legal

6

conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th

7

Cir. 1998) (failure to object to Magistrate’s legal conclusion “is a factor to be weighed in

8

considering the propriety of finding waiver of an issue on appeal”); Martinez v. Ylst, 951

9

F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir.

10

1980)).
DISCUSSION1

11
12

After conducting a thorough legal analysis, the Magistrate Judge concluded that

13

Petitioner’s claims against Defendants Clark and Jorgenson are subject to dismissal without

14

prejudice for Plaintiff’s failure to effect service. (Doc. 82.) The Magistrate Judge reviewed

15

Petitioner’s failure to properly serve these Defendants, as well as his failure to show good

16

cause or excusable neglect to justify his failure. (Id. at 2-3.) Petitioner raises no objection

17

to the Magistrate Judge’s factual or legal determinations, and after review the Court finds that

18

the Magistrate Judge properly concluded that Petitioner’s failure to timely serve these

19

Defendants justifies their dismissal without prejudice from Plaintiff’s suit.

20
21

Therefore, the Court hereby incorporates and adopts the Magistrate Judge’s Report
and Recommendation. (Doc. 82.)

22

CONCLUSION

23

For the reasons set forth above,

24

IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation

25
26

of the Magistrate Judge (Doc. 82).
IT IS FURTHER ORDERED that Defendants Clark and Jorgenson are hereby

27
1

28

The factual and procedural history of this case is set forth in the Magistrate
Judge’s Report and Recommendation (Doc. 82).

-2-

1
2
3
4

dismissed without prejudice.
IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment in favor
of Defendants and terminate this action.
DATED this 26th day of April, 2013.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-