Flowers #125290 v. Lawrence et al

Filing 27

ORDER (Service Packet): The Magistrate Judge's 19 Report and Recommendation is ADOPTED AND ACCEPTED. Plaintiff's 10 MOTION for Leave to File an Amended Complaint is GRANTED. Count I of the Amended Complaint is DISMISSED WITH OUT PREJUDICE as to Defendants Shane and Coleman; Count I is not dismissed as to Defendants Young, Batchlor, and L. Marshall. Defendants Young, Batchlor, and L. Marshall shall answer Count I of the Amended Complaint. All Defendants shall answer Count II of the Amended Complaint. The Clerk of Court shall file the proposed Amended Complaint. ORDERED the Clerk shall send Plaintiff the Court's Order and Service Packets for Defendants Young, Batchlor, L. Marshall, S. Lawrence, Contre as, Coleman, Dean, and Shane. Plaintiff shall complete and return the service packet to the Clerk within 21 days of the date of filing of this Order. Signed by Senior Judge James A Teilborg on 3/31/2015. (Attachments: # 1 Service Packet Letter, # 2 SP1, # 3 SP2, # 4 SP3, # 5 SP4, # 6 SP5, # 7 SP6, # 8 SP7, # 9 SP8, # 10 Rule 4)(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Eulandas J. Flowers,

No. CV-14-08184-PCT-JAT
Plaintiff,

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v.

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ORDER

Sandra Lawrence, et al.,

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Defendants.

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Pending before the Court is the Report and Recommendation (“R&R”) from the

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Magistrate Judge, (Doc. 19), recommending that Plaintiff’s Motion for Leave to File an

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Amended Complaint, (Doc. 10), be granted and that Defendants Shane and Coleman be

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dismissed as to Count I of the proposed Amended Complaint.

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Neither party filed objections to the R&R. Accordingly, the Court hereby accepts

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and adopts the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1985) (finding that district

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courts are not required to conduct “any review at all . . . of any issue that is not the

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subject of an objection” (emphasis added)); United States v. Reyna-Tapia, 328 F.3d 1114,

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1121 (9th Cir. 2003) (en banc) (“statute makes it clear that the district judge must review

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the magistrate judge’s findings and recommendations de novo if objection is made, but

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not otherwise” (emphasis in original)); see also Schmidt v. Johnstone, 263 F.Supp.2d

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1219, 1226 (D. Ariz. 2003).

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Therefore,

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IT IS ORDERED that that the Magistrate Judge’s Report and Recommendation,

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(Doc. 12), is ADOPTED AND ACCEPTED;

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IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File an
Amended Complaint, (Doc. 10), is GRANTED;

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IT IS FURTHER ORDERED that Count I of the Amended Complaint is

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DISMISSED WITHOUT PREJUDICE as to Defendants Shane and Coleman; Count I

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is not dismissed as to Defendants Young, Batchlor, and L. Marshall;

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IT IS FURTHER ORDERED that Defendants Young, Batchlor, and L. Marshall
shall answer Count I of the Amended Complaint;

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IT IS FURTHER ORDERED that all Defendants shall answer Count II of the
Amended Complaint;

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IT IS FURTHER ORDERED that the Clerk of Court shall file the proposed
Amended Complaint lodged as Doc 11-1 as Plaintiff’s Amended Complaint;

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IT IS FURTHER ORDERED that the Clerk of Court shall send Plaintiff the

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Court’s Order, and a copy of the Marshal’s Process Receipt & Return form (USM-285)

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and Notice of Lawsuit & Request for Waiver of Service of Summons form for

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Defendants Young, Batchlor, L. Marshall, S. Lawrence, Contreas, Coleman, Dean, and

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Shane;

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IT IS FURTHER ORDERED that Plaintiff shall complete and return the

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service packet to the Clerk of Court within 21 days of the date of filing of the

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Court’s Order. The United States Marshal will not provide service of process if

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Plaintiff fails to comply with this Order;

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IT IS FURTHER ORDERED that if Plaintiff does not either obtain a waiver

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of service of the summons or complete service of the Summons and Amended

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Complaint on a Defendant within 120 days of the filing of the Amended Complaint

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or within 60 days of the filing of the Court’s Order, whichever is later, the action

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may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv

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16.2(b)(2)(B)(i);

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IT IS FURTHER ORDERED that the Unites States Marshal is advised and

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ordered as follows:

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Complaint, and a copy of the Court’s Order for future use;

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action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal

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Rules of Civil Procedure. The notice to Defendants must include a copy of the Court’s

The United States Marshal must retain the Summons, a copy of the Amended

The United States Marshal must notify Defendants of the commencement of this

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Order;

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summons. If a waiver of service of summons is returned as undeliverable or is not

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returned by a Defendant within 30 days from the date the request for waiver was

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sent by the Marshal, the Marshal must:

The Marshall must immediately file signed waivers of service of the

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(a) personally serve copies of the Summons, Amended Complaint, and the

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Court’s Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules

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of Civil Procedure; and

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(b) within 10 days after personal service is effected, file the return of

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service for Defendant, along with evidence of the attempt to secure a waiver of

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service of the summons and of the costs subsequently incurred in effecting service

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upon Defendant. The costs of service must be enumerated on the return of service

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form (USM-285) and must include the costs incurred by the Marshal for

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photocopying additional copies of the Summons, Amended Complaint, or the

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Court’s Order and for preparing new process receipt and return forms (USM-285),

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if required. Costs of service will be taxed against the personally served Defendant

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pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise

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ordered by the Court;

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IT IS FURTHER ORDERED that Defendants are advised and ordered as

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follows:

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Complaint must return the signed waiver forms to the United States Marshal, not

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the Plaintiff;

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appropriate motion within the time provided by applicable provisions of Rule 12(a) of the

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Federal Rules of Civil Procedure;

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behalf it is filed. The Court may strike any answer, response, or other motion or paper

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Any Defendant who agrees to waive service of the Summons and Amended

Defendants must answer the Amended Complaint or otherwise respond by

Any answer or response must state the specific Defendant by name on whose

that does not identify the specific Defendant by name on whose behalf it is filed;

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IT IS FURTHER ORDERED that Plaintiff is advised and ordered as follows:

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A.

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Plaintiff must file and serve a notice of a change of address in accordance with

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Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action;

Address Changes

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B.

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Because Plaintiff is currently confined in an Arizona Department of Corrections

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unit subject to General Order 14-17, Plaintiff is not required to serve Defendants with a

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copy of every document he filed or to submit an additional copy of every filing for use by

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the Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and

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Local Rule of Civil Procedure 5.4. If Plaintiff is transferred to a unit other than one

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subject to General Order 14-17, he will be notified of the requirements for service and

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copies for the Court that are required for inmates whose cases are not subject to General

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Order 14-17;

Copies

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C.

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If Plaintiff fails to timely comply with every provision of the Court’s Order,

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including these warnings, the Court may dismiss this action without further notice. See

Possible Dismissal

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss

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an action for failure to comply with any order of the Court).

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Dated this 31st day of March, 2015.

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