Bustamante #145277 v. Centurion Health Care et al

Filing 149

ORDER ADOPTING REPORT AND RECOMMENDATION re: 148 Report and Recommendation. The action is dismissed without prejudice for failure to prosecute and failure to comply with the Court's orders. Centurion Defendants' Motion for Summary Judgment (Doc. 135 ) is denied as moot. The Clerk shall enter judgment accordingly and terminate the action. Signed by Chief Judge G Murray Snow on 11/15/23. (DXD)

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JDN

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jesus Bustamante,

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No. CV-21-02219-PHX-GMS
Plaintiff,

v.

ORDER

Centurion health Care, et al.,

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Defendants.

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Plaintiff Jesus Bustamante, who was previously confined in the Maricopa County

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Lower Buckeye Jail,1 brought this civil rights action under 42 U.S.C. § 1983 against

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Centurion Health Care, the former contracted health care provider for the Arizona

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Department of Corrections, Rehabilitation, and Reentry (ADCRR), Nurse Practitioner

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(NP) Pamela Olmstead, NP Daphnie Wischhusen, Nurse Veronica Renna, and Dr. Rodney

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Stewart (Centurion Defendants); and ADCRR Director Ryan Thornell. (Doc. 33.) Before

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the Court are Centurion Defendants’ Motion for Summary Judgment (Doc. 135) and the

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Report and Recommendation (R&R) of Magistrate Judge Eileen S. Willett recommending

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that the Court dismiss this action without prejudice based on Plaintiff’s failure to prosecute

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and failure to notify the Court of his change of address (Doc. 148).

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The Court will adopt the R&R and dismiss the action without prejudice. The Court
will deny Centurion Defendants’ Motion for Summary Judgment as moot.

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Plaintiff has since been released from Maricopa County Sheriff’s Office custody.
(See Docs. 140, 143, 144.)
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I.

Background

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Plaintiff’s claims arose during his confinement at the Arizona State Prison Complex

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(ASPC)-Eyman, Browning Unit, in Florence, Arizona. (Doc. 33 at 1.) In his First

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Amended Complaint, Plaintiff stated that he was diagnosed with hepatitis C in 2005 or

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2006, and, upon his entry into ADCRR custody in 2021, he requested treatment for his

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hepatitis C. (Id. at 5–15.) Plaintiff alleged that Defendant Centurion had a policy of

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delaying, denying, or ordering ineffective alternative treatment for his serious medical

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needs, and that Defendants Olmstead, Wischhusen, Renna, and Stewart were deliberately

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indifferent to Plaintiff’s serious medical needs. (Id.) The Court subsequently added

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ADCRR Director Thornell as a Defendant in his official capacity for purposes of injunctive

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relief. (Doc. 110.)

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In December 2022, Plaintiff was transferred from ASPC-Eyman to the La Palma

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Correctional Center in Eloy, Arizona. (Doc. 85.) Local Rule of Civil Procedure 83.3(d)

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requires an unrepresented party to file a Notice of Change of Address if his address

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changes. Plaintiff was notified of this Local Rule in the Notice of Assignment and the

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initial Screening Order, and he was informed that failure to comply with this requirement

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may result in dismissal of his action. (Docs. 4, 6.) Plaintiff filed a Notice of Change of

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Address with his new La Palma Correctional Center address. (Doc. 85.)

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On July 24, 2023, Plaintiff filed another Notice of Change of Address stating his

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new address was the Maricopa County Lower Buckeye Jail in Phoenix, Arizona. (Doc.

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125.) Plaintiff filed a Certificate of Service indicating that he mailed a copy of his Notice

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of Change of Address to defense counsel. (Id. at 2; Doc. 126.)

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On August 8, 2023, Plaintiff filed Notices of Discovery from his Lower Buckeye
Jail address. (Docs. 128, 129.)

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On August 12, 2023, Plaintiff again filed a Notice of Change of Address stating that

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his address was the Lower Buckeye Jail in Phoenix, Arizona. (Doc. 139.) Plaintiff noted

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that he was resubmitting the Notice to ensure that it was filed and that copies were sent to

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defense counsel on record. (Id.)

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On August 18, 2023, Centurion Defendants filed a Motion for Leave to File Excess

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Pages for their Motion for Summary Judgment, and they lodged a copy of their Motion for

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Summary Judgment. (Docs. 131, 132.) The Certificates of Service included with both the

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Motion for Leave to File Excess Pages and the Motion for Summary Judgment indicate

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that Centurion Defendants mailed copies of both documents to Plaintiff at his prior La

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Palma Correctional Center address. (Doc. 131 at 2; Doc. 132 at 29.)

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On August 21, 2023, the Court granted Centurion Defendants’ Motion for Leave to

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File Excess Pages, and their Motion for Summary Judgment was docketed. (Docs. 134,

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135.) A copy of the Order was mailed to Plaintiff at his Lower Buckeye Jail address. (Doc.

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134, receipt.)

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Also on August 21, 2023, the Court issued a Rand Order directing Plaintiff to file a

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response to Centurion Defendants’ Motion for Summary Judgment and setting a briefing

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schedule on the Motion. (Doc. 136.) A copy of this Order was sent to Plaintiff at the

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Lower Buckeye Jail address. (Id., receipt.)

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On August 22, 2023, the Court issued an Order overruling Centurion Defendants’

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appeal of the Magistrate Judge’s decision to direct Centurion Defendants to produce

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records to Plaintiff. (Doc. 137.)

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On August 29, 2023, a Court Order that was sent to Plaintiff at the Lower Buckeye

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Jail was returned in the mail for the reason that Plaintiff was “no longer in custody.” (Doc.

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140.) On September 1, 2023, the Rand Order and the Order denying Centurion Defendants’

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appeal, which were both sent to Plaintiff at the Lower Buckeye Jail, were also returned in

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the mail for the reason that Plaintiff was “no longer in custody.” (Doc. 143.)

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Under General Order 14-10, if documents sent by the Court to an unrepresented

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party are returned to the Court twice, and no change of address has been filed, the Court

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will discontinue the mailing of subsequent documents to the unrepresented party. (General

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Order 14-20, May 20, 2014.) Accordingly, the Court discontinued sending documents to

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Plaintiff.

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On September 15, 2023, the Court issued an Order to Show Cause directing Plaintiff

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to show cause why the Court should not dismiss Plaintiff’s Complaint for failure to

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prosecute pursuant to Federal Rule of Civil Procedure 41(b). (Doc. 145.) Pursuant to

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General Order 14-10, this Order was not mailed to Plaintiff, as he had not filed an updated

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address.

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On October 5, 2023, Magistrate Judge Willett filed her R&R recommending that

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Plaintiff’s Amended Complaint be dismissed without prejudice for Plaintiff’s failure to file

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a notice of change of address and failure prosecute this case pursuant to Rule 41(b). (Doc.

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148.) Pursuant to General Order 14-10, the R&R was not mailed to Plaintiff.

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To date, Plaintiff has not filed a notice of change of address.
II.

Report and Recommendation

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that

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the district judge must review the magistrate judge’s findings and recommendations de

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novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc); accord Schmidt v. Johnstone, 263 F. Supp. 2d 1219,

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1226 (D. Ariz. 2003) (“[f]ollowing Reyna-Tapia, this Court concludes that de novo review

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of

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otherwise’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d

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1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the

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[magistrate judge’s] recommendations to which the parties object”). District courts are not

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required to conduct “any review at all . . . of any issue that is not the subject of

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an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28

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U.S.C. § 636(b)(1) (“[a] judge of the court shall make a de novo determination of those

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portions of the [R&R] to which objection is made”).

factual

and

legal

issues

is

required

if objections are

made,

‘but

not

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Neither party filed objections to the Court’s October 5, 2023 R&R. The Court is

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therefore not obligated to review the R&R. See United States v. Reyna-Tapia, 328 F.3d

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1114, 1121 (9th Cir. 2003) (en banc); Fed. R. Civ. P. 72(b)(3) (“[t]he district judge must

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determine de novo any part of the magistrate judge’s disposition that has been properly

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objected to”).

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Even so, the Court has reviewed Judge Willett’s R&R. The R&R did not note that

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Centurion Defendants’ Motion for Summary Judgment was mailed to Plaintiff’s prior

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address and that, consequently, Plaintiff likely did not receive a copy of Defendants’

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Motion. (Doc. 148.) But this does not change the R&R legal analysis or the factual basis

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supporting the recommendation for dismissal. As set forth above, since August 2023,

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numerous documents mailed from the Court to Plaintiff have been returned in the mail,

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establishing that Plaintiff has failed to notify the Court of his change of address as required

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under the Local Rules and as directed in prior Court Orders, and he has abandoned his case.

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(Id. at 3.)

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The Court therefore accepts and adopts the R&R. The action is dismissed without

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prejudice for failure to prosecute and failure to comply with the Court’s orders. See Ferdik

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v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action

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for failure to comply with any order of the Court).

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IT IS ORDERED:

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(1)

The Report and Recommendation (Doc. 148) is adopted, and the action is

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dismissed without prejudice for failure to prosecute and failure to comply with the

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Court’s orders.

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(2)
as moot.

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Centurion Defendants’ Motion for Summary Judgment (Doc. 135) is denied

(3)

The Clerk of Court shall enter judgment accordingly and terminate the

action.
Dated this 15th day of November, 2023.

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