Gordon v. Ryan et al

Filing 27

ORDER Having reviewed the Magistrate Judge's R & R, and no objections having been filed by any party thereto, the court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation in its entirety (Doc. 26 ). In accordance therewith, IT IS ORDERED that pursuant to Fed.R.Civ.P. 4(m), the claims as against defendants Darla Elliot and Robert Pollard are DISMISSED WITHOUT PREJUDICE. Signed by Senior Judge Robert C Broomfield on 11/28/2012. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Danté Shon Gordon
Plaintiff,

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vs.

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Charles L. Ryan, et al.
Defendants.

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No. CIV 11-8153 PCT RCB (JFM)
O R D E R

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Currently pending before the court is the Report and

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Recommendation of United States Magistrate Judge James F.

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Metcalf (“R & R”) (Doc. 26), recommending that this action be

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dismissed without prejudice as to defendant Darla Elliot and

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defendant Pollard.1

As fully and soundly discussed in that

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During this litigation, there has been some confusion as to the
name of this particular defendant. The complaint’s caption names “Robert
Poland” as one of the defendants. Co. (Doc. 1) at 1. The body of that
complaint lists “Robert Polland[,] . . . [,]Assistant Deputy Warden” as
Undoubtedly, this is
one of the defendants, however. Id. at 2, § B(2).
the same person and plaintiff was uncertain as to the spelling of this
particular defendant’s name.
Further confusing the issue as to the correct spelling of this
defendant’s name is the fact that in the first amended complaint (“FAC”),
the caption lists “DEPUTY WARDEN POLLAND” as a defendant, but the FAC later
refers to “Deputy Warden Pollard[.]” FAC (Doc. 15) at 1:15-16; 2:25. Again,

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R & R, the Magistrate Judge recommended dismissal pursuant to

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Fed.R.Civ.P. 4(m) because “[p]laintiff . . . failed to show

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good cause or excusable neglect to justify an extension of

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time to complete service on the remaining Defendants.” R & R

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(Doc. 26) at 3:10-11.

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The R & R was filed and served upon the parties on

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November 7, 2012. The R & R explicitly advised the parties

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that, pursuant to Fed.R.Civ.P. 72, they “shall have fourteen

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(14) days from the date of service of a copy of this

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recommendation within which to file specific written

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objections with the Court.”

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parties have filed objections to that R & R, and the fourteen

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day time frame for so doing has passed.2

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Id. at 3:20-22. None of the

When reviewing an R & R issued by a Magistrate Judge,

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this court “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate

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judge.” 28 U.S.C. § 636(b)(1). “Of course, de novo review of

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a R & R is only required when an objection is made to the

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R & R[.]” Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.

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2005) (citing United States v. Reyna–Tapia, 328 F.3d 1114,

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presumably plaintiff is uncertain as to the exact spelling of this
defendant’s name.
Regardless of the spelling, what is clear is that
plaintiff intended to name as a defendant Robert Pollard, who was serving
as the Assistant Deputy Warden at the Kingman Arizona State Prison, Cerbat
Unit, during the relevant time frame.
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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 November 26, 2012, by which to
timely file any objections.

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1121 (9th Cir. 2003) (en banc)). That is because “[n]either

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the Constitution nor the [Federal Magistrates Act] requires a

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district judge to review, de novo, findings and

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recommendations that the parties themselves accept as

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correct.” Reyna–Tapia, 328 F.3d at 1121 (citations omitted).

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Indeed, construing the Federal Magistrates Act, the Supreme

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Court has found that that “statute does not on its face

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require any review at all, by either the district court or

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the court of appeals, of any issue that is not the subject of

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an objection.” Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct.

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466, 88 L.Ed.2d 435 (1985). Consistent with the foregoing

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authority, the court has not conducted a de novo review of

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the pending R & R because the parties did not file any

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objections thereto.

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Having reviewed the Magistrate Judge’s R & R, and no

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objections having been filed by any party thereto, the court

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hereby incorporates and adopts the Magistrate Judge’s Report

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and Recommendation in its entirety (Doc. 26). In accordance

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therewith, IT IS ORDERED that pursuant to Fed.R.Civ.P. 4(m),

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the claims as against defendants Darla Elliot and Robert

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Pollard are DISMISSED WITHOUT PREJUDICE.

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DATED this 28th day of November, 2012.

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Copies to counsel of record and plaintiff pro se
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