Wheeler v. Arizona, State of et al

Filing 85

ORDER that the 82 Report and Recommendation is ACCEPTED and ADOPTED as an Order of this Court. ORDERED that pursuant to Fed. R. Civ. P. 4(m) and 41(b), Plaintiff's claims against Defendants Djinis and Tartaglia are DISMISSED without prejudice. Signed by Judge Diane J Humetewa on 10/13/2017. (See Order for details.) (LFIG)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Cedric Wheeler, Plaintiff, 10 11 ORDER v. 12 No. CV-16-02326-PHX-DJH (BSB) State of Arizona, et al., 13 Defendants. 14 15 On September 19, 2017, United States Magistrate Judge Bridget S. Bade filed a 16 report recommending ( “R&R”) dismissal of “Plaintiff’s claims against Defendants 17 Djinis and Tartaglia this action without prejudice for failure to serve to serve and for 18 failure to comply with court orders pursuant to Fed. R. Civ. P. 4(m) and 41(b).” (Doc. 82 19 at 2:8-9). In so recommending, Magistrate Judge Bade explicitly advised the parties that 20 they “shall have fourteen days from the date of service of a copy of this recommendation 21 within which to file specific written objections with the Court.” (Doc. 82 at 2:13-14) 22 (citations omitted). Magistrate Judge Bade was equally explicit that: (1) “[f]ailure to file 23 timely objections to the any factual determinations of [her] Report and Recommendation 24 may result in the acceptance of the Report and Recommendation by the District Court 25 without further review[;]” and “[f]ailure to file timely objections to any factual 26 determinations of the Magistrate Judge may be considered a waiver of a party’s right to 27 appellate review of the findings of fact in an order or judgment entered pursuant to the 28 Magistrate Judge’s recommendation.” (Id. at 2:16-22) (citations omitted). 1 In accordance with the foregoing, the parties had until October 6, 2017, by which 2 to timely file objections to the R&R. The parties did not do so. Absent any timely 3 objections, the Court is not required to review the findings and recommendations in the 4 R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the 5 Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any 6 review at all . . . of any issue that is not the subject of an objection.”); United States v. 7 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same); Fed.R.Civ.P. 72(b)(3) (“The 8 district judge must determine de novo any part of the magistrate judge’s disposition that 9 has been properly objected to.”). Nonetheless, the Court has reviewed the R&R and 10 agrees with its findings and recommendation. The Court will, therefore, accept the R&R 11 in its entirety. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or 12 modify, in whole or in part, the findings or recommendations made by the magistrate 13 judge.”); Fed. R. Civ. P. 72(b)(3) (same). 14 Accordingly, 15 IT IS ORDERED that Magistrate Judge Bade’s R&R (Doc. 82) is ACCEPTED 16 and ADOPTED as an Order of this Court. 17 IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 4(m) and 41(b), 18 Plaintiff’s claims against Defendants Djinis and Tartaglia are DISMISSED without 19 prejudice. 20 Dated this 13th day of October, 2017. 21 22 23 24 Honorable Diane J. Humetewa United States District Judge 25 26 27 28 -2-

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