Thomson Streett v. Ortiz et al

Filing 24

ORDER ADOPTING 20 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez. IT IS FURTHER ORDERED that Plaintiff's claims are hereby dismissed withoutprejudice. (gr)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO CHRISTEE THOMPSON STREETT, Plaintiff, v. CIV 16-0189 MV/KBM MANNY ORTIZ and JOHN CAMPBELL, Defendant. ORDER OVERRULING PLAINTIFF’S OBJECTIONS AND ADOPTING THE CHIEF MAGISTRATE JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION THIS MATTER comes before the Court on Plaintiff Christee Thompson Streett’s (“Plaintiff’s) “Notice: Strike all unlawful Motion(s) and Order(s) entered the Streett Court Cause of Action: the Administration of Property w/o right” (Doc. 21), filed November 21, 2016. Therein, Plaintiff makes various assertions, most of which are incomprehensible to the Court, but which appear to relate to her purported property rights, this Court’s jurisdiction, and the authority and jurisdiction of the “Streett Court.” Given the timing of the filing of this Notice, the Court will construe it as objections to Chief Magistrate Judge’s November 17, 2016 Proposed Findings and Recommended Deposition (“PF&RD”) (Doc. 20), which alerted Plaintiff that any objections were due by November 28, 2016. See Doc. 20. In her PF&RD, Chief Magistrate Judge Molzen recommended that Plaintiff’s action be dismissed without prejudice. She noted that Plaintiff, as of the filing of the PF&RD, had not provided any indication to the Court that she had served or attempted to serve Defendants in this case, despite directives from the Court to do so by November 1, 2016. See Doc. 20. When a party files timely-written objections to a magistrate judge’s recommendation, the district court will conduct a de novo review and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(C). De novo review requires the district judge to consider relevant evidence of record and not merely to review the magistrate judge’s recommendation. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “[A] party’s objections to the magistrate judge’s [PF&RD] must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop., with Buildings, Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir. 1996). Here, the Court conducts a de novo review of the record and of Plaintiff’s Notice. It finds that her Notice, like her previously-filed Response to the Court’s Order to Show Cause, is nonsensical and unresponsive to the Court’s directive that she effect service by November 1, 2016. In the only portion of her Notice that broaches the topic of service, Plaintiff states: i will charge the wrongful holder(s) $1.00 (one) dollar per minute said property is not returned starting on the 22 day after they have received their summons/notice to answer my suit/claim, attached to this suit, Doc. 21 at ¶ 6. But this statement does not suggest that Plaintiff has effected or attempted to effect service on Defendants. Rather, it suggests that she intends to seek damages beginning on the 22nd day after she eventually effects service. She makes no representation as to when she intends to serve Defendants; nor 2 does she show good cause for her failure to do so up to this point. Given this Court’s clear and repeated warnings to Plaintiff that her case would be dismissed if she failed to serve Defendants or to show good cause why she had not served them, the undersigned agrees that dismissal is now appropriate. Following its de novo review of the record, including Plaintiff’s Notice, the Court overrules Plaintiff’s objections and adopts the Chief Magistrate Judge’s recommendation to dismiss this matter without prejudice. IT IS THEREFORE ORDERED that Plaintiff’s “Notice: Strike all unlawful Motion(s) and Order(s) entered the Streett Court Cause of Action: the Administration of Property w/o right,” which this Court construes as objections to the Magistrate Judge’s Proposed Findings and Recommended Disposition (Doc. 20), is hereby OVERRULED; IT IS FURTHER ORDERED that the Magistrate Judge’s Proposed Findings and Recommended Disposition (Doc. 20) is hereby ADOPTED; IT IS FURTHER ORDERED that Plaintiff’s claims are hereby dismissed without prejudice. UNITED STATES DISTRICT JUDGE 3

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