Brian Kirby v. Ryan Thornell, et al.

Opinion

WO

Brian Kirby, No. CV-23-02619-PHX-SHD

Plaintiff, ORDER

v.

Ryan Thornell, et al,

Defendant. Pending before the Court is a Report and Recommendation (“R&R”) from the Magistrate Judge recommending that Plaintiff’s Complaint be dismissed without prejudice as to Defendant Bianca Mocha under Fed. R. Civ. P. 4(m) and Fed. R. Civ. P. 41(b). (Doc. 93.) On September 20, 2024, the United States Marshals Service attempted service of Defendant Mocha and were advised that Defendant Mocha was no longer employed by Naphcare. (Doc. 53 at 1.) On August 18, 2025, the Court issued an order requiring that the parties file a status report as to Defendant Mocha within three days. (Doc. 90.) Defendants filed a Status Report on August 20, 2025, affirming that Defendant Mocha was never properly or timely served. (Doc. 91 at 3.) The Court then ordered that Plaintiff show cause within ten days as to why this matter should not be dismissed as to Defendant Mocha for failure to serve and advised Plaintiff that a failure to comply with the Court’s Order may result in dismissal of the case. (Doc. 92.) Plaintiff did not respond to the Court’s Order. /// On September 22, 2025, the Magistrate Judge issued the pending R&R. (Doc. 93.) No objections to the R&R have been filed and the deadline to file has expired. The R&R advised Plaintiff: The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). (Doc. 93 at 4.) This Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). As the R&R indicated, it is “clear that the district judge must review the magistrate judge’s findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] recommendations to which the parties object.”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“[T]he court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.”). No objections having been received, /// /// /// 1 IT IS ORDERED that the R&R (Doc. 93) is accepted. The Complaint is dismissed, without prejudice, as to Defendant Bianca Mocha under Fed. R. Civ. P. 4(m) and Fed. R. Civ. P. 41(b). The Clerk of Court shall enter judgment accordingly and, there being no remaining Defendants, close this case. Dated this 21st day of October, 2025. /

H le Sharad H. Desai United States District Judge

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