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. 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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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. 67), recommending the Court dismiss Defendant Jane
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Doe pursuant to Federal Rule of Civil Procedure 41(b).
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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 November 27, 2024, the Court ordered Plaintiff to show cause why Defendant
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Jane Doe should not be dismissed for failure to substitute her actual name (Doc. 65).
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Plaintiff has not responded or otherwise taken any action. In the R&R, the Magistrate Judge
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recommends Defendant Jane be dismissed pursuant to Rule 41(b) of the Federal Rules of
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Civil Procedure for failure to comply with this Court’s Orders (Doc. 67 at 2).
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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. 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.
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Honorable Steven P. Logan
United States District Judge
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