Kirby #165484 v. Thornell et al

Filing 73

ORDER ADOPTING REPORT AND RECOMMENDATION. Magistrate Judge Michael T. Morrissey's Report and Recommendation (Doc. 67 ) is accepted and adopted by the Court. Defendant Jane Doe is dismissed without prejudice. Signed by Judge Steven P Logan on 1/27/2025. (KJ)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Brian Kirby, 9 10 Plaintiff, vs. 11 12 13 14 Ryan Thornell, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) No. CV-23-02619-PHX-SPL (MTM) ORDER 15 Plaintiff Brian Kirby filed a Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The 16 Honorable Michael T. Morrissey, United States Magistrate Judge, issued a Report and 17 Recommendation (“R&R”) (Doc. 67), recommending the Court dismiss Defendant Jane 18 Doe pursuant to Federal Rule of Civil Procedure 41(b). 19 A district judge “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b); see also Fed. R. Civ. 21 P. 72(b)(3) (“The district judge may accept, reject, or modify the recommended disposition; 22 receive further evidence; or return the matter to the magistrate judge with instructions.”). 23 When a party files a timely objection to an R&R, the district judge reviews de novo those 24 portions of the R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b)(3). A 25 proper objection requires specific written objections to the findings and recommendations 26 in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1118–19 (9th Cir. 2003); 27 28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to 28 which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also 1 Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review 2 is judicial economy). Further, a party is not entitled as of right to de novo review of 3 evidence or arguments which are raised for the first time in an objection to the R&R, and 4 the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d 5 615, 621–622 (9th Cir. 2000). 6 On November 27, 2024, the Court ordered Plaintiff to show cause why Defendant 7 Jane Doe should not be dismissed for failure to substitute her actual name (Doc. 65). 8 Plaintiff has not responded or otherwise taken any action. In the R&R, the Magistrate Judge 9 recommends Defendant Jane be dismissed pursuant to Rule 41(b) of the Federal Rules of 10 Civil Procedure for failure to comply with this Court’s Orders (Doc. 67 at 2). 11 The parties did not file objections, which relieves the Court of its obligation to 12 review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 13 (1985) (“[Section 636(b)(1)] does not… require any review at all… of any issue that is not 14 the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine 15 de novo any part of the magistrate judge’s disposition that has been properly objected to.”). 16 The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court 17 will thus adopt the R&R in full. See 28 U.S.C. § 636(b)(1) (stating that the district court 18 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 19 by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or 20 modify the recommended disposition; receive further evidence; or return the matter to the 21 magistrate judge with instructions.”). Accordingly, 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 1 2 3 4 5 IT IS ORDERED that Magistrate Judge Michael T. Morrissey’s Report and Recommendation (Doc. 67) is accepted and adopted by the Court. IT IS FURTHER ORDERED that Defendant Jane Doe is dismissed without prejudice. Dated this 27th day of January, 2025. 6 7 Honorable Steven P. Logan United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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