Kirby #165484 v. Thornell et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge Michael T. Morrissey's Report and Recommendation (Doc. 66 ) is accepted and adopted by the Court. Defendants Ragsdale, Astrada, Davis, and Godlevsky are dismissed without prejudice. Signed by Judge Steven P Logan on 1/27/2025. (KJ)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Brian Kirby,
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Plaintiff,
vs.
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Ryan Thornell, et al.,
Defendants.
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No. CV-23-02619-PHX-SPL (MTM)
ORDER
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Plaintiff Brian Kirby filed a Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The
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Honorable Michael T. Morrissey, United States Magistrate Judge, issued a Report and
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Recommendation (“R&R”) (Doc. 66), recommending the Court dismiss Defendants
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Ragsdale, Astrada, Davis, and Godlevsky for failure to serve pursuant to Federal Rule of
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Civil Procedure 4(m).
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A district judge “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); see also Fed. R. Civ.
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P. 72(b)(3) (“The district judge may accept, reject, or modify the recommended disposition;
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receive further evidence; or return the matter to the magistrate judge with instructions.”).
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When a party files a timely objection to an R&R, the district judge reviews de novo those
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portions of the R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b)(3). A
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proper objection requires specific written objections to the findings and recommendations
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in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1118–19 (9th Cir. 2003);
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28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to
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which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also
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Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review
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is judicial economy). Further, a party is not entitled as of right to de novo review of
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evidence or arguments which are raised for the first time in an objection to the R&R, and
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the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d
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615, 621–622 (9th Cir. 2000).
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On October 16, 2024, the Court ordered Plaintiff to show cause why Defendants
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Ragsdale, Astrada, Davis, and Godlevsky should not be dismissed for failure to complete
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service (Doc. 62). Plaintiff has not responded or otherwise taken any action. In the R&R,
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the Magistrate Judge recommends Defendants Ragsdale, Astrada, Davis, and Godlevsky
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be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, reasoning that
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Plaintiff provided no discernable good cause for failure to serve those defendants in this
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case (Doc. 66 at 3).
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The parties did not file objections, which relieves the Court of its obligation to
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review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149
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(1985) (“[Section 636(b)(1)] does not… require any review at all… of any issue that is not
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the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine
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de novo any part of the magistrate judge’s disposition that has been properly objected to.”).
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The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court
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will thus adopt the R&R in full. See 28 U.S.C. § 636(b)(1) (stating that the district court
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“may accept, reject, or modify, in whole or in part, the findings or recommendations made
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by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or
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modify the recommended disposition; receive further evidence; or return the matter to the
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magistrate judge with instructions.”). Accordingly,
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IT IS ORDERED that Magistrate Judge Michael T. Morrissey’s Report and
Recommendation (Doc. 66) is accepted and adopted by the Court.
IT IS FURTHER ORDERED that Defendants Ragsdale, Astrada, Davis, and
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Godlevsky are dismissed without prejudice.
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Dated this 27th day of January, 2025.
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Honorable Steven P. Logan
United States District Judge
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