Layden #131158 v. Ryan et al

Filing 76

ORDER, Magistrate Judge Fine's Report and Recommendation 54 is adopted; Plaintiff's motion seeking leave to docket the Second Amended Complaint 29 lodged at 30 is denied; the lodged complaint 30 should be stricken from the record; P laintiff's motion to supplement his complaint 36 is denied; Plaintiff's motion seeking to supplement the Second Amended Complaint to add Alison Scott 43 is denied; Plaintiff's motion seeking to supplement his proposed lodged Second Amended Complaint to add Pam Shields as a defendant 44 is denied; Plaintiff's motion seeking to amend his lodged proposed Second Amended Complaint to add a claim against Dr Kamal Rastogi 45 is denied. Signed by Judge Diane J Humetewa on 7/27/15. (REW)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Thomas Bartholomew Layden,
Plaintiff,

10
11

ORDER

v.

12

No. CV-14-02470-PHX-DJH

Charles L. Ryan, et al.,

13

Defendants.

14
15

Presently pending before the court is the Report and Recommendation of United

16

States Magistrate Judge Deborah M. Fine (“R & R”) (Doc. 54), recommending denial of

17

pro se plaintiff Thomas Bartholomew Layden's motion for leave to amend his First

18

Amended Complaint and for leave to docket his lodged Second Amended Complaint1

19

(Doc. 29), and denial of his four motions to supplement (Docs. 36, 43, 44 and 45).

20

I. Background

21

The R & R thoroughly and accurately sets forth the procedural history of this

22

action and the pending motions. See R & R (Doc. 54) at 2:1-5:23. The R & R proceeds

23

to set forth the governing legal standards and then analyzes Plaintiff's pending motions in

24

turn. For the most part, the R & R recommends denial of these various motions because

25
26
1

27
28

Plaintiff did not comply with LRCiv 15.1, requiring that a party who is
moving for leave to amend a pleading "must attach a copy of the proposed amended
pleading as an exhibit to the motion, . . . must indicate in what respect it differs from the
pleading which it amends, by bracketing or striking through the text to be deleted and
underlining the text to be added." LRCiv 15.1(a).

1

amendment would be futile. See, e.g., R & R (Doc. 54) at 9:18-21; id. at 12:10-12.2

2

The R & R was filed and served upon the parties on May 22, 2015. The R & R

3

explicitly advised the parties that, pursuant to Fed.R.Civ.P. 72, they “shall have fourteen

4

(14) days from the date of service of a copy of this recommendation within which to file

5

specific written objections with the Court.” R & R (Doc. 54) at 13:10-12 (emphasis

6

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

7

objections to any factual or legal determinations of the Magistrate Judge will be

8

considered a waiver of a party’s right to de novo appellate consideration of the issues."

9

(Id. at 13:17-19) (citation omitted). Within that 14 day time frame, Plaintiff did not file

10

any objections, but he did file a "Motion to Accept Plaintiff's Response to Defendants3

11

[sic] Report and Recommendation (Doc. 57) at 1. The Court construes this as Plaintiff's

12

request for an extension of time in which to file his objections to the R & R. So

13

construed, the Court deems Plaintiff's Declaration (Doc. 64) and attached exhibits to be

14

his objections to the R & R. It also will consider these purported objections to be timely,

15

although they were filed outside the 14 day time frame which the R & R permitted.

16

II. Analysis

17

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

18

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

19
20
21
22
23
24
25
26
27

2

Deeming Plaintiff's motions to be "dispositive[,]" the Magistrate Judge
issued this R & R. R & R (Doc. 54) at 1:23-25 (quoting Fed.R.Civ.P. 72(b)(1)). The
Court observes that "[g]enerally, a motion for leave to amend the pleadings is a
nondispositive matter that may be ruled on by a magistrate judge pursuant to 28 U.S.C. §
636(b)(1).” Morgal v. Maricopa County Bd. of Sup'rs, 284 F.R.D. 452, 458 (D.Ariz.
2012) (internal quotation marks and citations omitted). However, "[t]here are
circumstances, such as [the present case] . . . 'when the denial is specifically premised on
futility[,]' that courts have 'view[ed] a magistrate judge's denial of a motion for leave to
amend as a dispositive ruling.'” See id. (quoting JJCO, Inc. v. Isuzu Motors America,
Inc., 2009 WL 3818247, at *3 (D.Haw. Nov. 12, 2009) (citing cases)). Interestingly, this
"'view is not universal[.]'" Id. (quoting JJCO, Inc., 2009 WL 3818247, at *3) (emphasis
added) (citing Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir.2006) (finding a
magistrate judge's denial of a motion to amend on grounds of futility to be nondispositive
and subject to review for clear error by the district court)).

28
3

Plainly Magistrate Judge Fine issued the R & R, not Defendants.
-2-

1

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

2

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

3

1000 n. 13 (9th Cir. 2005) (citation omitted); see also United States v. Reyna–Tapia, 328

4

F.3d 1114, 1121 (9th Cir. 2003) (en banc)) (emphasis in original) (Section 636(b)(1)

5

“makes it clear that the district judge must review the magistrate judge's findings and

6

recommendations de novo if objection is made, but not otherwise.”) That is because

7

“[n]either the Constitution nor the [Federal Magistrates Act] requires a district judge to

8

review, de novo, findings and recommendations that the parties themselves accept as

9

correct.” Reyna–Tapia, 328 F.3d at 1121 (citations omitted); Indeed, construing the

10

Federal Magistrates Act, the Supreme Court has found that that “statute does not on its

11

face require any review at all, by either the district court or the court of appeals, of any

12

issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985)

13

(emphasis added). Consistent with the foregoing authority, as explained next, because

14

Plaintiff did not object to any portion of the R & R, the Court is not conducting a de novo

15

review.

16

Nowhere in his "declaration," which the Court has deemed to be his objections to

17

the R & R, does Plaintiff even mention the R & R much less identify any "portions"

18

thereof or "specif[y] proposed findings or recommendation[s]" to which he objects. See

19

28 U.S.C. § 636(b)(1) (“A judge . . . shall make a de novo determination of those portions

20

of the report or specified proposed findings or recommendation to which objection is

21

made.”). Rather, Plaintiff's 16 page declaration is a detailed recitation of his version of

22

the facts underlying this lawsuit. Plaintiff attaches two exhibits to his declaration which

23

also do not specifically identify any portions of the R & R to which he objects. Exhibit

24

A consists of 37 pages of Arizona Department of Corrections Health Needs Requests.

25

Exhibit B, which is 20 pages, primarily consists of what appear to be notations and orders

26

by various health care professionals whom Plaintiff saw on the prison's medical unit and

27

elsewhere. Because Plaintiff's declaration and accompanying exhibits are wholly void of

28

any objections, much less specific objections, to any part of the R & R, this Court is not

-3-

1

required to review the R & R at all. See Thomas, 474 U.S., at 149.

2

III. Conclusion

3

Accordingly, the Court hereby ORDERS that:

4

(1) United States Magistrate Judge Fine's Report and Recommendation (Doc. 54)

5

is ADOPTED.

6

(2) Plaintiff’s motion seeking leave to docket the Second Amended Complaint

7

(Doc. 29) lodged at Doc. 30 is DENIED. The lodged complaint at Doc. 30 should be

8

stricken from the record in this matter.

9
10
11
12
13
14
15
16

(3) Plaintiff’s motion to supplement his complaint (Doc. 36) is DENIED.
(4) Plaintiff’s motion seeking to supplement the Second Amended Complaint to
add Alison Scott (Doc. 43) is DENIED.
(5)

Plaintiff’s motion seeking to supplement his proposed lodged Second

Amended Complaint to add Pam Shields as a defendant (Doc. 44) is DENIED.
(6) Plaintiff’s motion seeking to amend his lodged proposed Second Amended
Complaint to add a claim against Dr. Kamal Rastogi (Doc. 45) is DENIED.
Dated this 27th day of July, 2015.

17
18
19
20

Honorable Diane J. Humetewa
United States District Judge

21
22
23
24
25
26
27
28

-4-