Daniels v. BMF V AZ Saddle LLC

Opinion

1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Naomi Daniels, ) ) 11 Plaintiff, ) ) No. CIV 23-070-TUC-CKJ(EJM) 12 vs. ) ) ORDER 13 BMF V AZ Saddle, LLC, ) ) 14 Defendant. ) ) 15 On May 22, 2023, Magistrate Judge Eric J. Marakovich issued a Report and 16 Recommendation (Doc. 21) in which he recommends the Court grant the Application to 17 Proceed in District Court Without Prepaying of Fees or Costs ("Application") (Doc. 2) filed 18 by Plaintiff Naomi Daniels ("Daniels"), dismiss Daniels' Complaint for failure to state a 19 claim and granting leave to file a first amended complaint consistent with the Report and 20 Recommendation, and deny Daniels' Request: Cease and Detist [sic] ("Request") (Doc. 5) 21 without prejudice. 22 The Report and Recommendation advised the parties that, pursuant to 28 U.S.C. § 23 636(b) and Fed.R.Civ.P. 72(b)(2), any party may serve and file written objections within 24 fourteen (14) days after being served with a copy of the Report and Recommendation. No 25 objections have been filed within the time provided by 28 U.S.C. § 636(b)(1). 26 The standard of review that is applied to a magistrate judge’s report and 27 recommendation is dependent upon whether a party files objections – the Court need not 28 1 review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 2 150 (1985). However, the Court must “determine de novo any part of the magistrate judge’s 3 disposition that has been properly objected to. The district judge may accept, reject, or 4 modify the recommended disposition; receive further evidence; or return the matter to the 5 magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1). 6 Nonetheless, “while the statute does not require the judge to review an issue de novo if no 7 objections are filed, it does not preclude further review by the district judge, sua sponte or 8 at the request of a party, under a de novo or any other standard.” Thomas, 474 U.S. at 154. 9 The Court has reviewed and considered the Application, the Complaint, the Request 10 and the Report and Recommendation. After an independent review, the Court finds it is 11 appropriate to adopt the Report and Recommendation. Additionally, the Court finds it 12 appropriate to advise Daniels the Court's website provides forms of documents. See 13 https://www.azd.uscourts.gov/forms; https://www.azd.uscourts.gov/forms-self-represented- 14 litigants. 15 Accordingly, IT IS ORDERED: 16 1. The Report and Recommendation (Doc. 21) is ADOPTED. 17 2. Daniels' Application to Proceed in District Court Without Prepaying Fees or 18 Costs (Doc. 2) is GRANTED; 19 3. Daniels' Complaint (Doc. 1) is DISMISSED for failure to state a claim upon 20 which relief may be granted; 21 4. Daniels may file an Amended Complaint, consistent with the Report and 22 Recommendation, within 30 days of the date of this Order. Any Amended Complaint must 23 be retyped or rewritten in its entirety and may not incorporate any part of the prior complaint 24 or subsequent pleadings by reference. All causes of action alleged in the original complaint 25 which are not alleged in any Amended Complaint will be waived. Any Amended Complaint 26 submitted by Daniels shall be clearly designated as an Amended Complaint on the face of 27 28 1 || the document. Any Amended Complaint shall comply with the requirements of Fed.R.Civ.P. 2 || 8(a), 10(a), and 11(a). 3 5. The Clerk of the Court is DIRECTED to enter a judgment of dismissal, without 4 || prejudice, without further notice to Daniels, if Daniels fails to file an Amended Complaint 5 || within thirty (30) days of the filing date of this Order. 6 6. Daniels' Request: Cease and Detist [sic] (Doc. 5) is DENIED WITHOUT 7 || PREJUDICE. 8 7. This matter is referred to Magistrate Judge Eric J. Markovich for further 9 || pretrial proceedings and report and recommendation in accordance with the provisions of 28 10] U.S.C. § 636(b)(1) and L.R.Civ.P. 72.1 and 72.2. 11 All future filings in this case shall be designated: 12 CIV-23-070-TUC-CKJ (EJM) 13 DATED this 13th day of June, 2023. 14 Lat, JO saaneooee 16 Cindy K. Jor§€énso 7 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -3-