Sanchez v. Arizona Department of Corrections et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATION: Magistrate Judge Willett's R&R (Doc. 32 ) is accepted and adopted as the Order of this Court. Pursuant to Fed.R.Civ.P. 4(m), this action is dismissed without prejudice to renew as to Defendant Cardenas. Signed by Judge Diane J Humetewa on 10/27/15. (KGM)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hisrael Sanchez,

No. CV-14-01302-PHX-DJH
Plaintiff,

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v.

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ORDER

Arizona Department of Corrections, et al.,

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Defendants.

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Pending before the Court is a Report and Recommendation of United States

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Magistrate Judge Eileen S. Willett (“R & R”) (Doc. 32), recommending that this action

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be dismissed without prejudice as to Defendant Cardenas.

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I. Background

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As the R & R explains, pro se Plaintiff Sanchez has not been able to serve process

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upon Defendant Cardenas because he is no longer with the Arizona Department of

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Corrections. Thereafter, despite being ordered “to show cause why Defendant Cardenas

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should not be dismissed without prejudice from this action for failure to serve pursuant to

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Rule 4(m) of the Federal Rules of Civil Procedure and Rule 16.2(b)(2)(B)(ii) of the Local

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Rules of Civil Procedure[,]” Plaintiff did not respond. R & R (Doc. 2 at 2:6-10). In

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accordance with these Rules and taking into account the relevant factors, Judge Willett

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recommended dismissal without prejudice as to Defendant Cardenas because Plaintiff

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Sanchez did not serve this particular Defendant. (Id. at 3:7-9).

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The R & R explicitly advised the parties that, pursuant to Fed.R.Civ.P. 72, they

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“shall have fourteen days from the date of service of a copy of this recommendation

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within which to file specific written objections with the Court.” R & R (Doc. 32 at 3:13-

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15). The R & R also explicitly advised the parties that "[f]ailure to timely file objections

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to any factual determinations of the Magistrate Judge may be considered a waiver of a

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party’s right to appellate review of the findings of fact in an order or judgment entered

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pursuant to a Magistrate Judge’s recommendation.” (Id. at 3:16-19) (citations omitted).

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None of the parties have filed objections to that R & R, and the 14 day time frame for so

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doing has long since passed.

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II. Analysis

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When reviewing an R & R issued by a Magistrate Judge, this court “may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge.” 28 U.S.C. § 636(b)(1). “Of course, de novo review of a R & R is only

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required when an objection is made to the R & R[.]” Wang v. Masaitis, 416 F.3d 992,

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1000 n. 13 (9th Cir. 2005) (citing United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003) (en banc)). That is because “[n]either the Constitution nor the [Federal

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Magistrates Act] requires a district judge to review, de novo, findings and

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recommendations that the parties themselves accept as correct.” Reyna–Tapia, 328 F.3d

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at 1121 (citations omitted). Indeed, construing the Federal Magistrates Act, the Supreme

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Court has found that that “statute does not on its face require any review at all, by either

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the district court or the court of appeals, of any issue that is not the subject of an

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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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Consistent with the foregoing authority, the Court has not conducted a de novo

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review of the pending R & R because the parties did not file any objections thereto.

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Having reviewed the Magistrate Judge's R & R, and no objections having been filed by

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any party thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report

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and Recommendation in its entirety (Doc. 32).

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....

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Accordingly,

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IT IS ORDERED that Magistrate Judge Willett’s R&R (Doc. 32) is accepted

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and adopted as the Order of this Court; and
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 4(m), this action is
dismissed without prejudice to renew as to Defendant Cardenas.
Dated this 27th day of October, 2015.

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Honorable Diane J. Humetewa
United States District Judge

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