Gordon v. Ryan et al

Filing 17

ORDER re 16 Report and Recommendation - Consistent with the foregoing authority, and no objections having been filed by any party thereto, the court has not engaged in a de novo review; and instead, the court having "satisf[ied] itself that t here is no clear error on the face of the record[,]" hereby ACCEPTS, ADOPTS AND INCORPORATES BY REFERENCE in its entirety, as if fully set forth herein, the Magistrate Judge's Report and Recommendation (Doc. 16). See FED.R.CIV.P. 72, Advisory Committee Notes, 1983 Addition. Signed by Senior Judge Robert C Broomfield on 7/2/2012. (KMG)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Dante Shon Gordon, 13 14 15 16 Plaintiff, vs. Charles L. Ryan, et al. Defendants. ) ) ) ) ) ) ) ) ) ) No. CIV 11-8153-PHX-RCB(JFM) O R D E R 17 18 Presently before the court is a Report and Recommendation 19 (“R & R”) filed with this court by the Honorable James F. 20 Metcalf, United States Magistrate Judge), wherein he makes 21 four recommendations with respect to plaintiff’s First 22 Amended Complaint (“FAC”). 23 § 1915(e), he recommends dismissal of the State of Arizona as 24 a defendant, as well as dismissal of plaintiff’s claims based 25 upon the Privileges and Immunities Clause of the United 26 States Constitution. 27 the Magistrate Judge recommends staying service of 28 plaintiff’s original complaint. First, pursuant to 28 U.S.C. R & R (Doc. 16) at 7:13-15. Id. at 7:16-17. Second, Third, the Magistrate Judge recommends “that Defendant Director Ryan be 1 ordered to respond to Count I of the [FAC], and that 2 Defendants Deputy Warden Polland and Complex Administrator 3 Elliott be ordered to respond to Count II of the [FAC].” 4 at 7:18-21. 5 Defendants Director Ryan, Deputy Warden Polland, and Complex 6 Administrator Elliott proceed” as detailed in that R & R. 7 See id. at 7:22-9:3. 8 9 Id. Fourth, he recommends “that service on On May 23, 2012, this R & R was filed and served upon the parties. The R & R explicitly advised the parties that, 10 pursuant to Fed.R.Civ.P. 72, they “shall have fourteen (14) 11 days from the date of service of a copy of this 12 recommendation within which to file specific written 13 objections with the Court.” 14 parties have filed objections to that R & R, and the fourteen 15 day time frame for so doing has passed.1 16 Id. at 9:9-11. None of the When reviewing an R & R issued by a Magistrate Judge, 17 this court “may accept, reject, or modify, in whole or in 18 part, the findings or recommendations made by the magistrate 19 judge.” 28 U.S.C. § 636(b)(1). “Of course, de novo review of 20 a R & R is only required when an objection is made to the 21 R & R[.]” 22 Cir. 2005) (citing United States v. Reyna–Tapia, 328 F.3d 23 1114, 1121 (9th Cir. 2003) (en banc)). That is because 24 “[n]either the Constitution nor the [Federal Magistrates Act] 25 requires a district judge to review, de novo, findings and Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th 26 1 27 28 Calculating the time in accordance with Fed.R.Civ.P. 6, including allowing three extra days for service in accordance with subsection (d) of that Rule, means that the parties had until June 11, 2012 by which to timely file any objections. -2- 1 recommendations that the parties themselves accept as 2 correct.” Reyna–Tapia, 328 F.3d at 1121 (citations omitted). 3 Indeed, construing the Federal Magistrates Act, the Supreme 4 Court has found that that “statute does not on its face 5 require any review at all, by either the district court or 6 the court of appeals, of any issue that is not the subject of 7 an objection.” 8 466, 88 L.Ed.2d 435 (1985) (emphasis added). 9 Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. Consistent with the foregoing authority, and no 10 objections having been filed by any party thereto, the court 11 has not engaged in a de novo review; and instead, the court 12 having “satisf[ied] itself that there is no clear error on 13 the face of the record[,]” hereby ACCEPTS, ADOPTS AND 14 INCORPORATES BY REFERENCE in its entirety, as if fully set 15 forth herein, the Magistrate Judge’s Report and 16 Recommendation (Doc. 16). 17 Committee Notes, 1983 Addition. 18 See FED.R.CIV.P. 72, Advisory DATED this 2nd day of July, 2012. 19 20 21 22 23 24 25 26 Copies to counsel of record and plaintiff pro se 27 28 -3-

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