Nichols v. Unknown Party

Filing 14

ORDER ADOPTING REPORT AND RECOMMENDATIONS: IT IS ORDERED that the 11 Report and Recommendation is adopted as the opinion of the Court. The 10 Motion to Dismiss is GRANTED. The Clerk of the Court shall dismiss the 1 Petition and enter Judgment a ccordingly. IT IS FURTHER ORDERED that Petitioner proceeds here in forma pauperis under 28 U.S.C. § 2241, and in the event the Petitioner files an appeal, the Court finds the appeal is not taken in good faith. Signed by Judge David C Bury on 2/12/13.(BAC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA
Larry A. Nichols,

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Plaintiff,
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v.
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Unknown Party, named as Warden,
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Defendant,
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_______________________________________)

CV 12-666 TUC DCB
ORDER

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This matter was referred to Magistrate Judge Charles R. Pyle, on October 11, 2012. He

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issued a Report and Recommendation (R&R) on December 19, 2012, pursuant to Rules of

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Practice for the United States District Court, District of Arizona (Local Rules), Rule (Civil)
72.1(a). (Doc. 27: R&R.) Magistrate Judge Pyle recommends dismissing the case as moot
because the Petitioner has been released from custody.
STANDARD OF REVIEW
The duties of the district court, when reviewing a R&R by a Magistrate Judge, are set
forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district
court may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge.” Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1). When the parties object
to a Report and Recommendation (R&R), “‘[a] judge of the [district] court shall make a de novo

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determination of those portions of the [R&R] to which objection is made.’” Thomas v. Arn, 474
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U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). When no objections are filed, the
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district court does not need to review the R&R de novo. Wang v. Masaitis, 416 F.3d 992, 1000
n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en
banc). To the extent that no objection has been made, arguments to the contrary have been

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waived. McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's

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report waives right to do so on appeal); see also, Advisory Committee Notes to Fed. R. Civ. P.

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72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no

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timely objection is filed, the court need only satisfy itself that there is no clear error on the face

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of the record in order to accept the recommendation).

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The parties were sent copies of the R&R and instructed they had 14 days to file written

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objections. 28 U.S.C. § 636(b), see also, Federal Rule of Criminal Procedure 72 (party objecting

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to the recommended disposition has fourteen (14) days to file specific, written objections). The

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Petitioner has not filed an objection to the recommendation. A review of the Court docket

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reflects that the Petitioner has not provided a change of address since his release, and the R&R

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was returned as undeliverable.
REPORT AND RECOMMENDATION

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As noted by the Magistrate Judge, this Court is one of limited jurisdiction, which ends

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where there is no case in controversy. In other words, federal courts have no jurisdiction to hear

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a case that is moot. The function of the writ is to secure immediate release from illegal physical

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custody, therefore, when a habeas petitioner has been released, the petition must be dismissed
as moot. (Doc. 11: R&R at 2-4.)
There being no objection, the 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) (United States v. Remsing, 874 F.2d 614, 617-618 (9th Cir. 1989) (citing 28 U.S.C.
§ 636(b)(1)(A) as providing for district court to reconsider matters delegated to magistrate judge
when there is clear error or recommendation is contrary to law). The Court accepts and adopts
the R&R as the opinion of the Court, pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated
in the R&R, the Court grants the Respondent’s Motion to Dismiss.

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Accordingly,
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IT IS ORDERED that the Report and Recommendation [Doc. # 11] is adopted as the
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opinion of the Court.
IT IS FURTHER ORDERED that the Motion to Dismiss [10] is GRANTED.

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IT IS FURTHER ORDERED that the Clerk of the Court shall dismiss the Petition
(Doc. 1) and enter Judgment accordingly.

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IT IS FURTHER ORDERED that Petitioner proceeds here in forma pauperis under

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28 U.S.C. § 2241, and in the event the Petitioner files an appeal, the Court finds the appeal is

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not taken in good faith. 28 U.S.C. 1915(a)(3) and FRAP 24(a).

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DATED this 12th day of February, 2013.

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