Kirby 165484 v. Thornell

• Court: District Court, D. Arizona
• Decided: January 27, 2025
• Docket: 2:23-cv-02619
• Status: Unknown

Opinion

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

Brian K irby, ) No. CV-23-02619-PHX-SPL (MTM) ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Ryan Thornell, et al., ) 12 ) 13 Defendants. ) ) 14 )

15 Plaintiff Brian Kirby filed a Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The 16 Honorable Michael T. Morrissey, United States Magistrate Judge, issued a Report and 17 Recommendation (“R&R”) (Doc. 66), recommending the Court dismiss Defendants 18 Ragsdale, Astrada, Davis, and Godlevsky for failure to serve pursuant to Federal Rule of 19 Civil Procedure 4(m). 20 A district judge “may accept, reject, or modify, in whole or in part, the findings or 21 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b); see also Fed. R. Civ. 22 P. 72(b)(3) (“The district judge may accept, reject, or modify the recommended disposition; 23 receive further evidence; or return the matter to the magistrate judge with instructions.”). 24 When a party files a timely objection to an R&R, the district judge reviews de novo those 25 portions of the R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b)(3). A 26 proper objection requires specific written objections to the findings and recommendations 27 in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1118–19 (9th Cir. 2003); 28 28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to 1 which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also 2 Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review 3 is judicial economy). Further, a party is not entitled as of right to de novo review of 4 evidence or arguments which are raised for the first time in an objection to the R&R, and 5 the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d 6 615, 621–622 (9th Cir. 2000). 7 On October 16, 2024, the Court ordered Plaintiff to show cause why Defendants 8 Ragsdale, Astrada, Davis, and Godlevsky should not be dismissed for failure to complete 9 service (Doc. 62). Plaintiff has not responded or otherwise taken any action. In the R&R, 10 the Magistrate Judge recommends Defendants Ragsdale, Astrada, Davis, and Godlevsky 11 be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, reasoning that 12 Plaintiff provided no discernable good cause for failure to serve those defendants in this 13 case (Doc. 66 at 3). 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 thus adopt the R&R in full. See 28 U.S.C. § 636(b)(1) (stating that the district court 21 “may accept, reject, or modify, in whole or in part, the findings or recommendations made 22 by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or 23 modify the recommended disposition; receive further evidence; or return the matter to the 24 magistrate judge with instructions.”). Accordingly, 25 /// 26 /// 27 /// 28 /// 1 IT IS ORDERED that Magistrate Judge Michael T. Morrissey’s Report and 2} Recommendation (Doc. 66) is accepted and adopted by the Court. 3 IT IS FURTHER ORDERED that Defendants Ragsdale, Astrada, Davis, and 4| Godlevsky are dismissed without prejudice. 5 Dated this 27th day of January, 2025. 6 7 8 CRG GS 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28