Pologa-Seiuli v. Rice et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION re: 22 Report and Recommendation. Plaintiff's Complaint as to Defendant Rice is dismissed without prejudice for failure to timely serve pursuant to Federal Rule of Civil Procedure 4(m). This matter shall remain referred to Magistrate Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings. Signed by Judge Steven P Logan on 9/3/21. (DXD)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Rimoni Pologa-Seiuli,

9
10

Plaintiff,
vs.

11
12
13

Robert Rice, et al.,
Defendants.

14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV-20-02359-PHX-SPL (ESW)
ORDER

15

Plaintiff Rimoni Pologa-Seiuli has filed a pro se civil rights Complaint pursuant to

16

42 U.S.C. § 1983 (Doc. 1). The Honorable Eileen S. Willett, United States Magistrate

17

Judge, issued a Report and Recommendation (“R&R”) (Doc. 22), recommending the Court

18

dismiss without prejudice Defendant Robert Rice from Plaintiff’s Complaint for failure to

19

serve pursuant to Federal Rule of Civil Procedure 4(m). Plaintiff has filed an objection to

20

the R&R (Doc. 25).

21

A district judge “may accept, reject, or modify, in whole or in part, the findings or

22

recommendations made by the magistrate judge.” 28 U.S.C. § 636(b); see also Fed. R. Civ.

23

P. 72(b)(3) (“The district judge may accept, reject, or modify the recommended disposition;

24

receive further evidence; or return the matter to the magistrate judge with instructions.”).

25

When a party files a timely objection to an R&R, the district judge reviews de novo those

26

portions of the R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b)(3). A

27

proper objection requires specific written objections to the findings and recommendations

28

in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1118–19 (9th Cir. 2003);

1

28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to

2

which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also

3

Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review

4

is judicial economy). Further, a party is not entitled as of right to de novo review of

5

evidence or arguments which are raised for the first time in an objection to the R&R, and

6

the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d

7

615, 621–622 (9th Cir. 2000).

8

In the R&R, the Magistrate Judge recommends that Defendant Rice be dismissed

9

pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, reasoning that Plaintiff has

10

not provided the U.S. Marshals Service (“USMS”) with sufficient information to effect

11

service on Defendant Rice or good cause as to why Defendant Rice should not be dismissed

12

for failure to timely serve. Although Plaintiff has objected to the R&R, his objection does

13

not point to any specific flaw in the Magistrate Judge’s analysis or findings. Instead, he

14

explains that he provided all of the information he has on Defendant Rice’s location, which

15

is where he was employed at the time of the alleged incident.1 He further states that if he

16

cannot proceed against Defendant Rice, he intends to move forward against Defendant

17

Perez. Ultimately, the circumstances identified by Plaintiff do not qualify as good cause to

18

excuse the delay. Accordingly,
IT IS ORDERED that Magistrate Judge Eileen S. Willett’s Report and

19
20

Recommendation (Doc. 22) is accepted and adopted by the Court.

21

IT IS FURTHER ORDERED that Plaintiff’s Complaint as to Defendant Rice is

22

dismissed without prejudice for failure to timely serve pursuant to Federal Rule of Civil

23

Procedure 4(m).

24

///

25

///

26

///

27
1

28

The process receipt notes that Defendant Rice no longer works at the Saguaro
Correctional Center (Doc. 10).
2

1

IT IS FURTHER ORDERED that this matter shall remain referred to Magistrate

2

Judge Eileen S. Willett pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil

3

Procedure for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1).

4

Dated this 3rd day of September, 2021.

5
6

Honorable Steven P. Logan
United States District Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3