Thomas #029933 v. Wexford Medical et al
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)
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Wexford Medical, et al.,
At issue is Magistrate Judge James F. Metcalf’s Report and Recommendation
(R&R) in this matter filed September 30, 2015 (Doc. 59). The R&R recommends that the
Court dismiss without prejudice Plaintiff Donnell Thomas’s civil rights complaint for
failure to prosecute. The R&R clearly advised Plaintiff that he had fourteen days from the
date of service of a copy of the R&R to file any specific written objections. Fed. R. Civ.
Pr. 72. Plaintiff filed no objections, and the time to do so is now long past. Plaintiff has
therefore waived his right to de novo consideration of the issues per United States v.
Rayna-Tapia, 328 F.3d 1141, 1121 (9th Cir. 2003)(en banc), and the Court may adopt the
R&R based on the waiver. Nonetheless, the Court has conducted a review on the merits
of the issues involved. It finds that Magistrate Judge Metcalf’s reasoning and analysis are
correctly applied to the procedural situation.
Pursuant to Plaintiff’s motion, the Court directed the Clerk to enter default against
the remaining Defendant in this matter, and expressly gave Plaintiff fourteen days to
move for default judgment against her. (Doc. 55). Plaintiff allowed the deadline to pass
without so filing for default judgment. The court nonetheless gave Plaintiff an additional
chance, issuing on September 9, 2015 an Order to Show Cause why the case should not
be dismissed for failure to prosecute and giving Plaintiff fourteen days to show such
cause. (Doc. 57). Plaintiff failed to comply with the order. This matter is therefore ripe
for dismissal. The Court agrees with Judge Metcalf’s analysis that dismissal should be
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.
Honorable John J. Tuchi
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?