Salazar #235428 v. Arizona Department of Corrections

Filing 31

ORDER ADOPTING 29 Report and Recommendation of Magistrate Judge Metcalf and denying as moot 23 Defendant Coffey's Motion for Summary Judgment. IT IS FINALLY ORDERED that pursuant to Fed.R.Civ.P. 16(f), 37(b)(2)(A)(v), and 41, this action is dismissed without prejudice. Signed by Judge Diane J Humetewa on 3/11/16. (LSP)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Michael J. Salazar, No. CV-15-00688-PHX-DJH Plaintiff, 10 11 v. 12 ORDER Arizona Department of Corrections, et al., 13 Defendants. 14 15 Pending before the Court Pending before the Court is a Report and 16 Recommendation of United States Magistrate Judge James F. Metcalf (“R & R”) (Doc. 17 29), recommending that this action be dismissed in its entirety without prejudice. Also 18 pending before the Court is a motion for summary judgment by defendant Marlene 19 Coffey (Doc. 23). 20 I. Background 21 On February 22, 2016, in recommending dismissal, Judge Metcalf engaged in the 22 multi-factor analysis which this Circuit requires before such dismissal may be granted as 23 a sanction pursuant to Fed.R.Civ.P. 37(b)(2)(A)(v). (Doc. 29 at 2:10-3:17). 24 The R & R explicitly advised the parties that, pursuant to Fed.R.Civ.P. 72, they 25 “shall have fourteen days from the date of service of a copy of this recommendation 26 within which to file specific written objections with the Court.” (Doc. 29 at 3:26-28). 27 The R & R also explicitly advised the parties that "[f]ailure to timely file objections to 28 any factual determinations of the Magistrate Judge will be considered a waiver of a 1 party’s right to de novo consideration of the issues, . . . , and will constitute a waiver of a 2 party's right to appellate review of the findings of fact in an order or judgment entered 3 pursuant to the recommendation of the Magistrate Judge[.]” (Id. at 4:1-6) (citation 4 omitted). None of the parties have filed objections to that R & R, and the 14 day time 5 frame for so doing has passed. 6 II. Analysis 7 When reviewing an R & R issued by a Magistrate Judge, this court “may accept, 8 reject, or modify, in whole or in part, the findings or recommendations made by the 9 magistrate judge.” 28 U.S.C. § 636(b)(1). “Of course, de novo review of a R & R is only 10 required when an objection is made to the R & R[.]” Wang v. Masaitis, 416 F.3d 992, 11 1000 n. 13 (9th Cir. 2005) (citing United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th 12 Cir. 2003) (en banc)). That is because “[n]either the Constitution nor the [Federal 13 Magistrates Act] requires a district judge to review, de novo, findings and 14 recommendations that the parties themselves accept as correct.” Reyna–Tapia, 328 F.3d 15 at 1121 (citations omitted). Indeed, construing the Federal Magistrates Act, the Supreme 16 Court has found that that “statute does not on its face require any review at all, by either 17 the district court or the court of appeals, of any issue that is not the subject of an 18 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). 19 Consistent with the foregoing authority, because no objections to the R & R were 20 filed, the Court has not conducted a de novo review. The Court has reviewed the R & R 21 however and finds that it is soundly reasoned. In light of the foregoing, the Court hereby 22 incorporates and adopts the Magistrate Judge's Report and Recommendation in its 23 entirety (Doc. 29). 24 25 Adopting the R & R means that this action is dismissed without prejudice to renew. Such dismissal renders moot defendant Coffey’s summary judgment motion. 26 Accordingly, 27 IT IS ORDERED that Magistrate Judge Metcalf’s R & R (Doc. 29) is accepted 28 and adopted as the Order of this Court; -2- 1 2 3 IT IS FURTHER ORDERED DENYING as moot Defendant Coffey’s motion for summary judgment (Doc. 23); and IT IS FINALLY ORDERED that pursuant to Fed.R.Civ.P. 16(f), 37(b)(2)(A)(v), 4 and 41, this action is dismissed without prejudice. 5 Dated this 11th day of March, 2016. 6 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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