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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cedric Wheeler,
Plaintiff,

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ORDER

v.

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No. CV-16-02326-PHX-DJH (BSB)

State of Arizona, et al.,

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Defendants.

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On September 19, 2017, United States Magistrate Judge Bridget S. Bade filed a

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report recommending ( “R&R”) dismissal of “Plaintiff’s claims against Defendants

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Djinis and Tartaglia this action without prejudice for failure to serve to serve and for

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failure to comply with court orders pursuant to Fed. R. Civ. P. 4(m) and 41(b).” (Doc. 82

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at 2:8-9). In so recommending, Magistrate Judge Bade explicitly advised the parties that

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they “shall have fourteen days from the date of service of a copy of this recommendation

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within which to file specific written objections with the Court.” (Doc. 82 at 2:13-14)

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(citations omitted). Magistrate Judge Bade was equally explicit that: (1) “[f]ailure to file

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timely objections to the any factual determinations of [her] Report and Recommendation

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may result in the acceptance of the Report and Recommendation by the District Court

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without further review[;]” and “[f]ailure to file timely objections to any factual

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determinations of the Magistrate Judge may be considered a waiver of a party’s right to

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appellate review of the findings of fact in an order or judgment entered pursuant to the

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Magistrate Judge’s recommendation.” (Id. at 2:16-22) (citations omitted).

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In accordance with the foregoing, the parties had until October 6, 2017, by which

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to timely file objections to the R&R. The parties did not do so. Absent any timely

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objections, the Court is not required to review the findings and recommendations in the

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R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the

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Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any

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review at all . . . of any issue that is not the subject of an objection.”); United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (same); Fed.R.Civ.P. 72(b)(3) (“The

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district judge must determine de novo any part of the magistrate judge’s disposition that

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has been properly objected to.”). Nonetheless, the Court has reviewed the R&R and

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agrees with its findings and recommendation. The Court will, therefore, accept the R&R

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in its entirety. See 28 U.S.C. § 636(b)(1)(C) (“A judge of the court may accept, reject, or

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

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

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Accordingly,

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IT IS ORDERED that Magistrate Judge Bade’s R&R (Doc. 82) is ACCEPTED

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and ADOPTED as an Order of this Court.

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IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 4(m) and 41(b),

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Plaintiff’s claims against Defendants Djinis and Tartaglia are DISMISSED without

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prejudice.

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Dated this 13th day of October, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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