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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Hisrael Sanchez, No. CV-14-01302-PHX-DJH Plaintiff, 10 11 v. 12 ORDER Arizona Department of Corrections, et al., 13 Defendants. 14 15 16 Pending before the Court is a Report and Recommendation of United States 17 Magistrate Judge Eileen S. Willett (“R & R”) (Doc. 32), recommending that this action 18 be dismissed without prejudice as to Defendant Cardenas. 19 I. Background 20 As the R & R explains, pro se Plaintiff Sanchez has not been able to serve process 21 upon Defendant Cardenas because he is no longer with the Arizona Department of 22 Corrections. Thereafter, despite being ordered “to show cause why Defendant Cardenas 23 should not be dismissed without prejudice from this action for failure to serve pursuant to 24 Rule 4(m) of the Federal Rules of Civil Procedure and Rule 16.2(b)(2)(B)(ii) of the Local 25 Rules of Civil Procedure[,]” Plaintiff did not respond. R & R (Doc. 2 at 2:6-10). In 26 accordance with these Rules and taking into account the relevant factors, Judge Willett 27 recommended dismissal without prejudice as to Defendant Cardenas because Plaintiff 28 Sanchez did not serve this particular Defendant. (Id. at 3:7-9). 1 The R & R explicitly advised the parties that, pursuant to Fed.R.Civ.P. 72, they 2 “shall have fourteen days from the date of service of a copy of this recommendation 3 within which to file specific written objections with the Court.” R & R (Doc. 32 at 3:13- 4 15). The R & R also explicitly advised the parties that "[f]ailure to timely file objections 5 to any factual determinations of the Magistrate Judge may be considered a waiver of a 6 party’s right to appellate review of the findings of fact in an order or judgment entered 7 pursuant to a Magistrate Judge’s recommendation.” (Id. at 3:16-19) (citations omitted). 8 None of the parties have filed objections to that R & R, and the 14 day time frame for so 9 doing has long since passed. 10 II. Analysis 11 When reviewing an R & R issued by a Magistrate Judge, this court “may accept, 12 reject, or modify, in whole or in part, the findings or recommendations made by the 13 magistrate judge.” 28 U.S.C. § 636(b)(1). “Of course, de novo review of a R & R is only 14 required when an objection is made to the R & R[.]” Wang v. Masaitis, 416 F.3d 992, 15 1000 n. 13 (9th Cir. 2005) (citing United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th 16 Cir. 2003) (en banc)). That is because “[n]either the Constitution nor the [Federal 17 Magistrates Act] requires a district judge to review, de novo, findings and 18 recommendations that the parties themselves accept as correct.” Reyna–Tapia, 328 F.3d 19 at 1121 (citations omitted). Indeed, construing the Federal Magistrates Act, the Supreme 20 Court has found that that “statute does not on its face require any review at all, by either 21 the district court or the court of appeals, of any issue that is not the subject of an 22 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 23 Consistent with the foregoing authority, the Court has not conducted a de novo 24 review of the pending R & R because the parties did not file any objections thereto. 25 Having reviewed the Magistrate Judge's R & R, and no objections having been filed by 26 any party thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report 27 and Recommendation in its entirety (Doc. 32). 28 .... -2- 1 Accordingly, 2 IT IS ORDERED that Magistrate Judge Willett’s R&R (Doc. 32) is accepted 3 4 5 6 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. 7 8 9 Honorable Diane J. Humetewa United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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