Allen v. Unknown Party et al

Filing 46

ORDER incorporating and adopting 44 Report and Recommendation: (1) Pursuant to Fed.R.Civ.P. 4(m), this action is DISMISSED WITHOUT PREJUDICE TO RENEW; and (2) Plaintiff's 45 Motion for Appointment of Counsel Pursuant to 28 U.S.C. §1915(e)(1) is DENIED. (See document for full details). Signed by Judge Diane J Humetewa on 10/3/14. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Donald Alphonso Allen,

No. CV-13-08048-PCT-DJH

Plaintiff,

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v.

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ORDER

Unknown Party, et al.,

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Defendants.

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Presently pending before the court is the Report and Recommendation of United

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States Magistrate Judge Mark E. Aspey (“R & R”) (Doc. 44), recommending that this

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action be dismissed without prejudice as to defendant Denoyer, the only remaining

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defendant in this action.

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Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) (Doc 45).

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I. Background

Also pending before the Court is plaintiff Allen's Motion for

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As the R & R thoroughly recounts, plaintiff Allen has not effected service of

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process upon defendant Denoyer, although he was given an extra year to so do so, and the

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Court ordered the United States Marshal to assist the plaintiff. As fully and soundly

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discussed in that R & R, the Magistrate Judge recommended dismissal without prejudice

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pursuant to Fed.R.Civ.P. 4(m) because plaintiff Allen did not "serve the only defendant

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remaining in this matter." R & R (Doc. 44) at 7:16.

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The R & R was filed and served upon the parties on September 11, 2014. The R &

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R explicitly advised the parties that, pursuant to Fed.R.Civ.P. 72, they “shall have

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

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which to file specific written objections with the Court.” Id. at 8:7-11. The R & R also

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explicitly advised the parties that "[f]ailure to timely file objections to any factual or legal

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determinations of the Magistrate Judge will be considered a waiver of a party’s right to

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de novo appellate consideration of the issues."

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Continuing, the R & R further advised that "[f]ailure to timely file objections to any

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factual or legal determinations of the Magistrate Judge will constitute a waiver of a

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party’s right to appellate review of the findings of fact and conclusions of law in an order

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or judgment entered pursuant to the recommendation of the Magistrate Judge." Id. at

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8:19-24. None of the parties have filed objections to that R & R, and the 14 day time

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frame for so doing has passed.1

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Id. at 8:15-18 (citation omitted).

II. Analysis

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When reviewing an R & R issued by a Magistrate Judge, this court “may accept,

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reject, or modify, in whole or in part, the findings or recommendations made by the

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magistrate judge.” 28 U.S.C. § 636(b)(1). “Of course, de novo review of a R & R is only

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required when an objection is made to the R & R[.]” Wang v. Masaitis, 416 F.3d 992,

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1000 n. 13 (9th Cir. 2005) (citing United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th

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Cir. 2003) (en banc)). That is because “[n]either the Constitution nor the [Federal

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Magistrates Act] requires a district judge to review, de novo, findings and

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recommendations that the parties themselves accept as correct.” Reyna–Tapia, 328 F.3d

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at 1121 (citations omitted). Indeed, construing the Federal Magistrates Act, the Supreme

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Court has found that that “statute does not on its face require any review at all, by either

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the district court or the court of appeals, of any issue that is not the subject of an

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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Consistent with the foregoing

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authority, the Court has not conducted a de novo review of the pending R & R because

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the parties did not file any objections thereto.

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Having reviewed the Magistrate Judge's R & R, and no objections having been

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This takes into account the additional three days allotted to the plaintiff in accordance
with Fed.R.Civ.P. 6(d) because, as the docket indicates, he was served by mail.

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filed by any party thereto, the Court hereby incorporates and adopts the Magistrate

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Judge's Report and Recommendation in its entirety (Doc. 34).

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With respect to plaintiff Allen's most recent motion for appointment of counsel

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(his third), the Court denies that motion as moot. Plainly, the dismissal of this motion

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obviates plaintiff's purported need for counsel.

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In accordance herewith , IT IS ORDERED that:

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(1) Pursuant to Fed.R.Civ.P. 4(m), this action is DISMISSED WITHOUT

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PREJUDICE TO RENEW; and
(2)

Plaintiff's Motion for Appointment of Counsel Pursuant to 28 U.S.C. §

1915(e)(1) is DENIED.

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Dated this 3rd day of October, 2014.

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