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)

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-