Oliver v. Tucson, City of

Filing 69

ORDER ADOPTING REPORT AND RECOMMENDATIONS 58 . It is FURTHER ORDERED that the Plaintiff's Motion to Dismiss Case (Doc. 54 ) is GRANTED WITH PREJUDICE and that Defendants' Motions to Dismiss (Doc. 48 and 50 ) are summarily GRANTED for Plaintiff's failure to respond. The Clerk of the Court shall enter Judgmentaccordingly. Signed by Judge David C Bury on 8/21/12. (KAH)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 8 9 10 11 12 13 DISTRICT OF ARIZONA Anthony Allen Oliver, ) ) Plaintiff, ) ) v. ) ) City of Tucson, et al., ) ) Defendant, ) _______________________________________) ) CV 11-334 TUC DCB ORDER 14 This matter was referred to Magistrate Judge D. Thomas Ferraro, on September 26, 2011, 15 and Judge Ferraro issued a Report and Recommendation (R&R) on June 14, 2012, advising the 16 Court to grant the Plaintiff’s motion to voluntarily dismiss his case, with prejudice. 17 Plaintiff filed his motion to voluntarily dismiss his case in response to two motions to 18 dismiss filed by the Defendants. In response to Plaintiff’s motion for voluntary dismissal, the 19 Defendants objected to dismissal of the action without prejudice, pursuant to Federal Rule of 20 Civil Procedure 41, because subsection a(1)(B) provides for dismissal to operate as an 21 adjudication on the merits (a dismissal with prejudice) if “‘the plaintiff has previously dismissed 22 any federal- or state-court action based on or including the same claim.’” (Doc. 58: R&R at 1- 23 2.) Plaintiff had previously “voluntarily dismissed a prior action including claims in this suit 24 (negligent and intentional infliction of emotional distress and malicious prosecution) and the 25 suits are based on the same factual premise and claims generally, [therefore] a voluntary 26 dismissal at this stage would be with prejudice under the rules.” Id. at 2. 27 The Magistrate Judge issued an Order allowing the Plaintiff to withdraw his motion to 28 dismiss and respond to the Defendants’ pending motions to dismiss. The Order was returned to the Court as not deliverable because the Plaintiff had been released and not notified the Court 1 of his changed address. Subsequent to the issuance of the R&R by the Magistrate Judge, the 2 Plaintiff filed a Notice of Change of Address and a motion for an extension of time to respond 3 to the motions to dismiss. The Court denied the extension of time, but extended the deadline 4 for objecting to the R&R and allowed the Plaintiff to include arguments responsive to the 5 motions to dismiss in his Objection to the R&R. (Doc. 66.) 6 The time for filing objections has expired, and Plaintiff has not filed any objection. 7 The duties of the district court, when reviewing a R&R of a Magistrate Judge, are set 8 forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district 9 court may “accept, reject, or modify, in whole or in part, the findings or recommendations made 10 by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1). When the parties object 11 to a R&R, “‘[a] judge of the [district] court shall make a de novo determination of those portions 12 of the [R&R] to which objection is made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) 13 (quoting 28 U.S.C. § 636(b)(1)). When no objections are filed, the district court does not need 14 to review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United 15 States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc); see also McCall v. 16 17 18 19 20 21 22 23 24 Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also, Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation). While there are no objections and review has, therefore, been waived, the Court nevertheless reviews at a minimum, de novo, the Magistrate Judge’s conclusions of law. Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (conclusions of law by a magistrate judge reviewed de novo); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (failure to object standing alone will not ordinarily 25 waive question of law, but is a factor in considering the propriety of finding waiver)). The 26 27 Court finds the R&R to be thorough and well-reasoned, without any clear error in law or fact. See United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (citing 28 U.S.C. § 28 -2- 1 636(b)(1)(A) as providing for district court to reconsider matters delegated to magistrate judge 2 when there is clear error or recommendation is contrary to law). The Court accepts and adopts 3 the R&R as the opinion of the Court, pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated 4 in the R&R, the Court dismisses this action with prejudice. 5 Accordingly, 6 IT IS ORDERED that the Report and Recommendation [Doc. # 58] is adopted as the 7 8 9 10 11 12 13 14 opinion of the Court. IT IS FURTHER ORDERED that the Plaintiff’s Motion to Dismiss Case (Doc. 54) is GRANTED WITH PREJUDICE. IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss (Doc. 48 and 50) are summarily GRANTED, pursuant to LRCiv 7.2(i), for Plaintiff’s failure to respond. IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment accordingly. DATED this 21st day of August, 2012. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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