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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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Donald Alphonso Allen, No. CV-13-08048-PCT-DJH Plaintiff, 10 11 v. 12 ORDER Unknown Party, et al., 13 Defendants. 14 Presently pending before the court is the Report and Recommendation of United 15 States Magistrate Judge Mark E. Aspey (“R & R”) (Doc. 44), recommending that this 16 action be dismissed without prejudice as to defendant Denoyer, the only remaining 17 defendant in this action. 18 Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) (Doc 45). 19 I. Background Also pending before the Court is plaintiff Allen's Motion for 20 As the R & R thoroughly recounts, plaintiff Allen has not effected service of 21 process upon defendant Denoyer, although he was given an extra year to so do so, and the 22 Court ordered the United States Marshal to assist the plaintiff. As fully and soundly 23 discussed in that R & R, the Magistrate Judge recommended dismissal without prejudice 24 pursuant to Fed.R.Civ.P. 4(m) because plaintiff Allen did not "serve the only defendant 25 remaining in this matter." R & R (Doc. 44) at 7:16. 26 The R & R was filed and served upon the parties on September 11, 2014. The R & 27 R explicitly advised the parties that, pursuant to Fed.R.Civ.P. 72, they “shall have 28 fourteen (14) days from the date of service of a copy of this recommendation within 1 which to file specific written objections with the Court.” Id. at 8:7-11. The R & R also 2 explicitly advised the parties that "[f]ailure to timely file objections to any factual or legal 3 determinations of the Magistrate Judge will be considered a waiver of a party’s right to 4 de novo appellate consideration of the issues." 5 Continuing, the R & R further advised that "[f]ailure to timely file objections to any 6 factual or legal determinations of the Magistrate Judge will constitute a waiver of a 7 party’s right to appellate review of the findings of fact and conclusions of law in an order 8 or judgment entered pursuant to the recommendation of the Magistrate Judge." Id. at 9 8:19-24. None of the parties have filed objections to that R & R, and the 14 day time 10 frame for so doing has passed.1 11 Id. at 8:15-18 (citation omitted). II. Analysis 12 When reviewing an R & R issued by a Magistrate Judge, this court “may accept, 13 reject, or modify, in whole or in part, the findings or recommendations made by the 14 magistrate judge.” 28 U.S.C. § 636(b)(1). “Of course, de novo review of a R & R is only 15 required when an objection is made to the R & R[.]” Wang v. Masaitis, 416 F.3d 992, 16 1000 n. 13 (9th Cir. 2005) (citing United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th 17 Cir. 2003) (en banc)). That is because “[n]either the Constitution nor the [Federal 18 Magistrates Act] requires a district judge to review, de novo, findings and 19 recommendations that the parties themselves accept as correct.” Reyna–Tapia, 328 F.3d 20 at 1121 (citations omitted). Indeed, construing the Federal Magistrates Act, the Supreme 21 Court has found that that “statute does not on its face require any review at all, by either 22 the district court or the court of appeals, of any issue that is not the subject of an 23 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). Consistent with the foregoing 24 authority, the Court has not conducted a de novo review of the pending R & R because 25 the parties did not file any objections thereto. 26 Having reviewed the Magistrate Judge's R & R, and no objections having been 27 28 1 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. -2- 1 filed by any party thereto, the Court hereby incorporates and adopts the Magistrate 2 Judge's Report and Recommendation in its entirety (Doc. 34). 3 With respect to plaintiff Allen's most recent motion for appointment of counsel 4 (his third), the Court denies that motion as moot. Plainly, the dismissal of this motion 5 obviates plaintiff's purported need for counsel. 6 In accordance herewith , IT IS ORDERED that: 7 (1) Pursuant to Fed.R.Civ.P. 4(m), this action is DISMISSED WITHOUT 8 9 10 PREJUDICE TO RENEW; and (2) Plaintiff's Motion for Appointment of Counsel Pursuant to 28 U.S.C. § 1915(e)(1) is DENIED. 11 12 Dated this 3rd day of October, 2014. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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