Merrick v. Ryan et al

Filing 70

ORDER - The 68 Motion Pursuant to Rule 60(c) is denied. The Magistrate Judge's 65 Report and Recommendation is accepted and adopted by the Court; and the 52 Motion to Supplement the Pleadings is denied. Signed by Judge Steven P Logan on 7/26/2016. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Anthony James Merrick,

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Plaintiff,
vs.

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Charles L. Ryan, et al.,
Defendants.

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No. CV-15-00684-PHX-SPL (BSB)
ORDER

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On April 16, 2015, Plaintiff Anthony James Merrick, who is confined in the

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Arizona State Prison Complex-Yuma, commenced the instant action (Doc. 1), and filed a

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pro se Second Amended Complaint pursuant to 42 U.S.C. § 1983 on July 24, 2015 (Doc.

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14). On May 13, 2016, Merrick filed a motion to supplement the pleadings pursuant to

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Rule 15(d) of the Federal Rules of Civil Procedure, seeking to supplement the pleadings

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with transactions, occurrences, and events that occurred after the filing of his Second

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Amended Complaint. (Docs. 52, 53.) While Defendants filed a response opposing the

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request on June 15, 2016 (Doc. 63), no reply was filed.

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On July 8, 2016, the Honorable Bridget S. Bade, United States Magistrate Judge,

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issued a Report and Recommendation (“R&R”) (Doc. 65), recommending that the motion

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to supplement the pleadings be denied. Merrick was informed that he had fourteen days

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to file an objection to the R&R. However, he did not do so. Instead, Merrick filed a Rule

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60(c) motion to vacate (Doc. 68) and declaration (Doc. 69), dated July 19, 2016, urging

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the Court to vacate the R&R because he did not receive Defendants’ response to the

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motion, and was therefore precluded from filing a reply or an objection. Because nothing

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prevented Merrick from objecting to the issues addressed in the R&R, and additional

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briefing would not lead this Court to arrive at a different conclusion, the motion to vacate

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will be denied.1

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The Court has reviewed Merrick’s proposed supplemental pleading and the

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docket, and is in agreement with Judge Bade’s recommendation and her supporting

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reasoning. As addressed in the R&R, the amendment and discovery deadlines have

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passed. (See Docs. 31, 48.) Permitting Merrick to supplement his pleadings at this

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juncture, the functional equivalent of granting him leave to file a Third Amended

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Complaint, would unduly delay the resolution of this case. It would prejudice Defendants

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who would be unable to conduct discovery and investigate the new allegations. Further,

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amendment would be futile. As explained in the R&R, the proposed supplemental

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allegations fail to state a claim for relief. The Court will therefore adopt the R&R and

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deny Merrick’s motion to supplement the pleadings. See 28 U.S.C. § 636(b)(1) (stating

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that the district court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge

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may accept, reject, or modify the recommended disposition; receive further evidence; or

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return the matter to the magistrate judge with instructions.”). Accordingly,

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IT IS ORDERED:

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1. That the Motion Pursuant to Rule 60(c) (Doc. 68) is denied;

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2. That the Magistrate Judge’s Report and Recommendation (Doc. 65) is

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accepted and adopted by the Court; and

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The Court adds as a side note that Rule 60 is not a mechanism for vacating a
Magistrate Judge’s R&R. An R&R is not a final judgment or an order; it is a
recommendation to the District Judge as to how he or she should rule on or resolve an
issue pending before the Court.
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3. That the Motion to Supplement the Pleadings (Doc. 52) is denied.

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Dated this 26th day of July, 2016.

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Honorable Steven P. Logan
United States District Judge

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