Henry v. Penzone

• Court: District Court, D. Arizona
• Decided: August 18, 2021
• Docket: 2:21-cv-00386
• Status: Unknown

Opinion

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Kevin D ean Henry, ) No. CV-21-00386-SPL-CDB ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Paul Penzone, et al., ) 12 ) 13 Defendants. ) ) 14 )

15 On March 5, 2021, Plaintiff filed a pro se complaint pursuant to 42 U.S.C. § 1983 16 (Doc. 1), as well as a motion for leave to proceed in forma pauperis (Doc. 2). On May 14, 17 2021, the Court ordered Defendants Beckwith, Cooper, Dodd, Bernardo, Howard, 18 Martinez, Navarette, and Fletcher to answer the excessive force claim in Count One; and 19 dismissed the remaining claims and Defendants. 20 On June 14, 2021, Plaintiff filed a Motion to Amend Complaint (Doc. 9). Plaintiff 21 seeks to amend Count One of his Complaint to cure the identified defects with regard to 22 his claims against Penzone, as well as to assert a claim in Count Two against Collins for 23 deliberate indifference to Plaintiff’s serious medical needs (Doc. 9–1). 24 On July 13, 2021, the Honorable Camille D. Bibles, United States Magistrate Judge, 25 issued a Report and Recommendation (“R&R”) (Doc. 16), recommending the Motion to 26 Amend be granted in part as to the inclusion of the claim against Defendant Collins for 27 violation of his Fourteenth Amendment right to adequate medical health care and denied 28 in all other respects. Judge Bibles advised the parties that they had fourteen (14) days to 1 file objections to the R&R and that failure to file timely objections could be considered a 2 waiver of the right to obtain review of the R&R. See also 28 U.S.C. § 636(b)(1); Fed. R. 3 Civ. P. 6, 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 4 A district judge “may accept, reject, or modify, in whole or in part, the findings or 5 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files a 6 timely objection to an R&R, the district judge reviews de novo those portions of the R&R 7 that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection requires 8 specific written objections to the findings and recommendations in the R&R. See United 9 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b) (1). It 10 follows that the Court need not conduct any review of portions to which no specific 11 objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 12 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial 13 economy). 14 The parties did not file objections, which relieves the Court of its obligation to 15 review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 16 (1985) (“[Section 636(b)(1)] does not… require any review at all… of any issue that is not 17 the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine 18 de novo any part of the magistrate judge’s disposition that has been properly objected to.”). 19 The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court 20 will adopt the R&R and grant the Motion in part. See 28 U.S.C. § 636(b)(1) (stating that 21 the district court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge 23 may accept, reject, or modify the recommended disposition; receive further evidence; or 24 return the matter to the magistrate judge with instructions.”). Accordingly, 25 IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. 26 16) is accepted and adopted by the Court. 27 /// 28 /// 1 IT IS FURTHER ORDERED that Plaintiff's Motion to Amend (Doc. 9) is 2| granted in part and denied in part. The Motion is granted insofar as Plaintiff seeks to proceed ona Fourteenth Amendment claim against Collins and denied in all other respects. 4 Dated this 18th day of August, 2021. 5 6 iL Es 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28