Adkins et al v. Corrections Corporation of America et al

Filing 34

ORDER that portion of the Report and Recommendation 14 that defendants John Ioane and the State of Hawaii should be dismissed, without prejudice, is not adopted and plaintiffs shall be allowed to proceed with their claims as against these defendant s and others; but in all other respects, the court hereby ACCEPTS, ADOPTS and INCORPORATES BY REFERENCE, as if fully set forth herein, the remainder of the Magistrate Judge's Report and Recommendation 14 . Signed by Senior Judge Robert C Broomfield on 1/4/13. (TLJ)

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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 Branden Adkins, et al. 13 Plaintiffs, 14 15 vs. Corrections Corporation of America, et al. 16 Defendants. 17 ) ) ) ) ) ) ) ) ) ) ) CV-12-1615-PHX-RCB(JFM) O R D E R 18 Currently pending before the court is the Report and 19 Recommendation of United States Magistrate Judge James F. 20 Metcalf (“R & R”) (Doc. 14), wherein he makes three 21 recommendations with respect to plaintiffs’ First Amended 22 Complaint (“FAC”) (Doc. 8). 23 only one of those recommendations. 24 pursuant to 28 U.S.C. § 1915A, the Magistrate Judge 25 recommends dismissal without prejudice as to defendants John 26 Ioane and the State of Hawaii (“SOH”). 27 5:3-4. 28 appearance . . . for purposes of responding” to the R & R, Objections have been filed as to More specifically, R & R (Doc. 14) at However, those two defendants, making a “special 1 are requesting that this court “amend the [R & R] and not 2 dismiss them from this action.” 3 (emphasis omitted); and at 6:8-10 (emphasis in original). Resp. (Doc. 29) at 1:13-15 4 The R & R was filed and served upon the parties on 5 November 27, 2012. The R & R explicitly advised the parties 6 that, pursuant to Fed.R.Civ.P. 72, they “shall have fourteen 7 (14) days from the date of service of a copy of this 8 recommendation within which to file specific written 9 objections with the Court.” Id. at 5:25-27. Defendants 10 Ioane and the SOH timely filed a response to that R & R, as 11 indicated. 12 No other objections have been filed. When reviewing an R & R, this court “may accept, reject, 13 or modify, in whole or in part, the findings or 14 recommendations made by the magistrate judge.” 28 U.S.C. 15 § 636(b)(1); see also Fed.R.Civ.P. 72(b) (“The district judge 16 may accept, reject, or modify the recommended decision, 17 receive further evidence, or recommit the matter to the 18 magistrate judge with instructions.”) 19 review of a R & R is only required when an objection is made 20 to the R & R[.]” Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 21 (9th Cir. 2005) (citing United States v. Reyna–Tapia, 328 F.3d 22 1114, 1121 (9th Cir. 2003) (en banc)). That is because 23 “[n]either the Constitution nor the [Federal Magistrates Act] 24 requires a district judge to review, de novo, findings and 25 recommendations that the parties themselves accept as 26 correct.” Reyna–Tapia, 328 F.3d at 1121 (citations omitted). 27 Indeed, construing the Federal Magistrates Act, the Supreme 28 Court has found that that “statute does not on its face -2- “Of course, de novo 1 require any review at all, by either the district court or 2 the court of appeals, of any issue that is not the subject of 3 an objection.” 4 466, 88 L.Ed.2d 435 (1985). 5 authority, the court has conducted a de novo review only as 6 to the R & R’s recommendation of dismissal as to defendants 7 Ioane and the SOH, because that is the only aspect of the 8 R & R to which objections were made. 9 Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. Consistent with the foregoing The FAC adds as defendants, among others, John Ioane and 10 the SOH. 11 because he “is not connected in any way to the allegations of 12 the [FAC].” 13 R & R recommends dismissal because the FAC “makes no 14 allegations that the [SOH] has waived its [sovereign] 15 immunity” under the Eleventh Amendment. 16 As to the former, the R & R recommends dismissal R & R (Doc. 14) at 4:18. As to the SOH, the Id. at 5:1-2. Given the “somewhat unique[]” procedural history of this 17 action, as detailed in defendants’ response, and to enforce 18 the agreement reached in connection with the related stayed 19 Hawaii state court action, also detailed therein, the court 20 agrees with defendants Ioane and the SOH, that the R & R must 21 be amended. 22 dismissed from this action because, inter alia, he is 23 “consent[ing] to this Court’s jurisdiction for purposes of 24 this lawsuit only.” see Resp. (Doc. 29) at 3:3 - 4:22; 4:1- 25 15, and exh. 3 thereto; and at 5:26 - 6:1 (footnote omitted). 26 Further defendants SOH and Ioane “consent to be sued in this 27 action, in this Court and waive applicable Eleventh Amendment 28 immunity defenses.” In particular, defendant Ioane shall not be Id. at 5:4-5. -3- Allowing both the federal 1 claims and state law tort claims, including those against 2 defendants SOH and Ioane, to be litigated in this federal 3 court action, will serve the laudable purpose of, among other 4 things, conserving judicial resources. 5 Thus, having reviewed the Magistrate Judge’s R & R (Doc. 6 14), and the “Special Appearance on Behalf of Defendants 7 State of Hawaii and John Ioane for Purposes of Responding to 8 Magistrate’s [R & R] Dated 11/27/12 [Doc. 14]” (Doc. 29), IT 9 IS ORDERED that: 10 (1) that portion of the Report and Recommendation (Doc. 11 14) that defendants John Ioane and the State of Hawaii should 12 be dismissed, without prejudice, is not adopted and 13 plaintiffs shall be allowed to proceed with their claims as 14 against these defendants and others; but 15 (2) in all other respects, the court hereby ACCEPTS, 16 ADOPTS and INCORPORATES BY REFERENCE, as if fully set forth 17 herein, the remainder of the Magistrate Judge’s Report and 18 Recommendation (Doc. 14). 19 DATED this 4th day of January, 2013. 20 21 22 23 24 25 26 Copies to counsel of record 27 28 -4-

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