Long #162838 v. Ryan et al

Filing 42

ORDER: IT IS ORDERED that Magistrate Judge Fine's R&R (Doc. 38 ) is accepted and adopted as the order of this Court. IT IS FURTHER ORDERED that Defendant May is dismissed from this action. Signed by Judge Diane J Humetewa on 3/29/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Larry Bernard Long,

No. CV-15-1265-PHX-DJH
Plaintiff,

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v.

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ORDER

Charles L. Ryan, et al.,

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Defendants.

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This matter is before the Court on the Report and Recommendation (“R&R”)

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issued by United States Magistrate Judge Deborah M. Fine on February 25, 2016. (Doc.

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38). In the R&R, Judge Fine recommends dismissing Defendant May because he has not

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been served in accordance with Fed.R.Civ.P. 4(m) and LRCiv 16.2(b)(2)(B)(ii). As the

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R&R states, service was attempted on Defendant May but was returned unexecuted on

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August 31, 2015, indicating he was no longer employed by the Arizona Department of

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Corrections. (Doc. 38 at 1-2). No forwarding address was provided. Judge Fine then

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granted Plaintiff’s motion to compel Defendant May’s last known address under seal and

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multiple extensions of time to complete service.

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unsuccessful and Defendant May was never served.

Those efforts, however, were

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Judge Fine advised the parties that they had fourteen days to file objections and

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that the failure to file timely objections "will be considered a waiver of a party’s right to

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de novo appellate consideration of the issues.” (Doc. 38 at 3-4) (citing United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)). The parties have not filed

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objections and the time to do so has expired. Absent any objections, the Court is not

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required to review the findings and recommendations in the R&R. See Thomas v. Arn,

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474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28

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U.S.C. § 636(b)(1)(C), “does not on its face require any review at all . . . of any issue that

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is not the subject of an objection.”); Reyna-Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P.

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72(b)(3) (“The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to.”).

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Nonetheless, the Court has reviewed the R&R and agrees with its findings and

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recommendations. The Court will, therefore, accept the R&R and dismiss Defendant

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May from this action. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept,

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

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magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).

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Accordingly,

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IT IS ORDERED that Magistrate Judge Fine's R&R (Doc. 38) is accepted and

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adopted as the order of this Court.

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IT IS FURTHER ORDERED that Defendant May is dismissed from this action.

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Dated this 29th day of March, 2016.

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Honorable Diane J. Humetewa
United States District Judge

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