Heard v. Murray

Filing 15

ORDER adopting Report and Recommendations (Doc. 14 ) and dismissing without prejudice the Complaint (Doc. 1 ). IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter. See document for complete details. Signed by Judge John J Tuchi on 7/29/2022. (WLP)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Heard, Plaintiff, 10 11 v. 12 Unknown Murray, 13 No. CV-22-00051-PHX-JJT (JFM) ORDER Defendant. 14 15 16 At issue is the Report and Recommendation (Doc. 14, “R&R”) submitted in this 17 matter by United States Magistrate Judge James F. Metcalf recommending that the Court 18 dismiss without prejudice the Complaint (Doc. 1) and this action. In the R&R, Judge Metcalf 19 warned the parties that they “shall have fourteen (14) days from the date of service of a copy 20 of this recommendation within which to file specific written objections with the Court.” 21 (Doc. 14 at 4). Judge Metcalf further warned the parties that “[f]ailure to timely file 22 objections to any findings or recommendations of the Magistrate Judge will be considered a 23 waiver of a party’s right to de novo consideration to the issues [] and will constitute a waiver 24 of a party’s right to appellate review of the findings of fact in an order or judgment entered 25 pursuant to the recommendation of the Magistrate Judge.” (Doc. 14 at 4.) 26 Judge Metcalf’s R&R was entered May 23, 2022. Because Plaintiff is not registered 27 as a participant on the Court’s ECF system for electronic service, service of the R&R upon 28 him was affected by mail that same day, pursuant to Rule 5(b(2)(C), Fed. R. Civ. P., and 1 Plaintiff’s 14-day deadline was extended by three days to account for mailing as provided 2 in Rule 6(d), Fed. R. Civ. P. Thus, Plaintiff had a total of 17 days, or until June 9, 2023, to 3 file any objections to the R&R. He filed no objections, either by that deadline or in the 4 seven weeks that have elapsed since. Plaintiff therefore has waived his right to de novo 5 consideration of the issues before the Court and its findings and conclusions in this Order. 6 The Court nonetheless evaluated the R&R on its merits, and upon doing so, 7 concludes that Judge Metcalf’s reasoning and recommendations are all sound and 8 thoroughly discussed. It therefore will adopt the R&R, including its analysis, in whole. As 9 Judge Metcalf observed, Plaintiff appears to have abandoned his case. He never filed his 10 case management report, as Judge Metcalf had ordered him to do by April 11, 2022, and 11 without which the Court could not proceed in efficient fashion. He then never filed any 12 response to Judge Metcalf’s Order requiring him to show cause why the matter should not 13 be dismissed. As Judge Metcalf rightly recognized, this is a failure to prosecute Plaintiff’s 14 case. And it is the basis for Judge Metcalf’s recommendation that this Court dismiss the 15 matter without prejudice. Plaintiff’s failure to object to the R&R further bolsters Judge 16 Metcalf’s conclusion that Plaintiff has abandoned his case. The Court thus will dismiss. 17 18 IT IS ORDERED adopting in whole Judge Metcalf’s R&R (Doc. 14) and dismissing without prejudice the Complaint (Doc. 1). 19 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter. 20 Dated this 29th day of July, 2022. 21 22 Honorable John J. Tuchi United States District Judge 23 24 25 26 27 28 -2-

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