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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Heard,
Plaintiff,

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v.

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Unknown Murray,

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No. CV-22-00051-PHX-JJT (JFM)
ORDER

Defendant.

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At issue is the Report and Recommendation (Doc. 14, “R&R”) submitted in this

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matter by United States Magistrate Judge James F. Metcalf recommending that the Court

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dismiss without prejudice the Complaint (Doc. 1) and this action. In the R&R, Judge Metcalf

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warned the parties that they “shall have fourteen (14) days from the date of service of a copy

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of this recommendation within which to file specific written objections with the Court.”

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(Doc. 14 at 4). Judge Metcalf further warned the parties that “[f]ailure to timely file

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objections to any findings or recommendations of the Magistrate Judge will be considered a

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waiver of a party’s right to de novo consideration to the issues [] and will constitute a waiver

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of a party’s right to appellate review of the findings of fact in an order or judgment entered

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pursuant to the recommendation of the Magistrate Judge.” (Doc. 14 at 4.)

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Judge Metcalf’s R&R was entered May 23, 2022. Because Plaintiff is not registered

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as a participant on the Court’s ECF system for electronic service, service of the R&R upon

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him was affected by mail that same day, pursuant to Rule 5(b(2)(C), Fed. R. Civ. P., and

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Plaintiff’s 14-day deadline was extended by three days to account for mailing as provided

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in Rule 6(d), Fed. R. Civ. P. Thus, Plaintiff had a total of 17 days, or until June 9, 2023, to

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file any objections to the R&R. He filed no objections, either by that deadline or in the

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seven weeks that have elapsed since. Plaintiff therefore has waived his right to de novo

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consideration of the issues before the Court and its findings and conclusions in this Order.

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The Court nonetheless evaluated the R&R on its merits, and upon doing so,

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concludes that Judge Metcalf’s reasoning and recommendations are all sound and

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thoroughly discussed. It therefore will adopt the R&R, including its analysis, in whole. As

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Judge Metcalf observed, Plaintiff appears to have abandoned his case. He never filed his

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case management report, as Judge Metcalf had ordered him to do by April 11, 2022, and

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without which the Court could not proceed in efficient fashion. He then never filed any

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response to Judge Metcalf’s Order requiring him to show cause why the matter should not

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be dismissed. As Judge Metcalf rightly recognized, this is a failure to prosecute Plaintiff’s

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case. And it is the basis for Judge Metcalf’s recommendation that this Court dismiss the

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matter without prejudice. Plaintiff’s failure to object to the R&R further bolsters Judge

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Metcalf’s conclusion that Plaintiff has abandoned his case. The Court thus will dismiss.

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IT IS ORDERED adopting in whole Judge Metcalf’s R&R (Doc. 14) and
dismissing without prejudice the Complaint (Doc. 1).

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IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter.

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Dated this 29th day of July, 2022.

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Honorable John J. Tuchi
United States District Judge

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