Thomas #029933 v. Wexford Medical et al

Filing 60

ORDER: The Court agrees with Judge Metcalf's analysis that dismissal should be without prejudice. IT IS ORDERED dismissing without prejudice Plaintiff's cause of action in this matter and instructing the Clerk to close the matter. See document for further details. Signed by Judge John J Tuchi on 11/30/2015. (REK)

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1 NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Donnell Thomas, No. CV-15-00394-PHX-JJT Plaintiff, 10 11 v. 12 ORDER Wexford Medical, et al., 13 Defendants. 14 15 At issue is Magistrate Judge James F. Metcalf’s Report and Recommendation 16 (R&R) in this matter filed September 30, 2015 (Doc. 59). The R&R recommends that the 17 Court dismiss without prejudice Plaintiff Donnell Thomas’s civil rights complaint for 18 failure to prosecute. The R&R clearly advised Plaintiff that he had fourteen days from the 19 date of service of a copy of the R&R to file any specific written objections. Fed. R. Civ. 20 Pr. 72. Plaintiff filed no objections, and the time to do so is now long past. Plaintiff has 21 therefore waived his right to de novo consideration of the issues per United States v. 22 Rayna-Tapia, 328 F.3d 1141, 1121 (9th Cir. 2003)(en banc), and the Court may adopt the 23 R&R based on the waiver. Nonetheless, the Court has conducted a review on the merits 24 of the issues involved. It finds that Magistrate Judge Metcalf’s reasoning and analysis are 25 correctly applied to the procedural situation. 26 Pursuant to Plaintiff’s motion, the Court directed the Clerk to enter default against 27 the remaining Defendant in this matter, and expressly gave Plaintiff fourteen days to 28 move for default judgment against her. (Doc. 55). Plaintiff allowed the deadline to pass 1 without so filing for default judgment. The court nonetheless gave Plaintiff an additional 2 chance, issuing on September 9, 2015 an Order to Show Cause why the case should not 3 be dismissed for failure to prosecute and giving Plaintiff fourteen days to show such 4 cause. (Doc. 57). Plaintiff failed to comply with the order. This matter is therefore ripe 5 for dismissal. The Court agrees with Judge Metcalf’s analysis that dismissal should be 6 without prejudice. 7 8 9 IT IS ORDERED dismissing without prejudice Plaintiff’s cause of action in this matter and instructing the Clerk to close the matter. Dated this 30th day of November, 2015. 10 11 Honorable John J. Tuchi United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2-

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