1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Steven Sentre Merchant, No. CV-21-01593-PHX-JAT (ESW)
10 Plaintiff, ORDER
11 v.
12 Unknown Smith, et al.,
13 Defendants. 14 15 Pending before the Court is the Report and Recommendation (R&R) of the 16 Magistrate Judge recommending dismissal of Defendant Calvin without prejudice due to 17 Plaintiff Steven Sentre Merchant’s failure to timely effect service of process. (Doc. 30). 18 Plaintiff filed an Objection to the Report and Recommendation of the Magistrate Judge 19 (“Objection”). (Doc. 32), and Defendant Smith filed a Response to Plaintiff’s Objection. 20 (Doc. 39). 21 This Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district judge 23 must review the findings and recommendations of the magistrate judge de novo only if 24 there is an objection from one or both parties, not otherwise. United States v. Reyna-Tapia, 25 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Schmidt v. Johnstone, 263 F. Supp. 2d 26 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo 27 review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 28 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 1 Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] 2 recommendations to which the parties object.”). District courts are not obligated to perform 3 any review of any issue to which no party has objected. Thomas v. Arn, 474 U.S. 140, 149 4 (1985); see also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of 5 those portions of the [report and recommendation] to which objection is made.”). 6 As Plaintiff states no objection to the procedural background laid out in the R&R, 7 the Court adopts it as set forth therein: 8 Plaintiff Steven Sentre Merchant, who is confined in the Arizona State Prison Complex-Lewis, filed a pro se civil rights 9 Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The Court 10 screened Plaintiff’s Complaint and ordered Defendants Smith and Calvin to answer Counts One and Three (Doc. 7 at 5). 11 Defendant Smith filed his Answer on February 4, 2022 (Doc. 12 9).
13 Service of process was returned unexecuted as to Defendant 14 Calvin (Doc. 12). On Nov. 11, 2021, the Court had ordered Plaintiff to either “obtain a waiver of service of the summons 15 or complete service of the Summons and Complaint on a 16 Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later” 17 or “the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii).” (Doc. 18 7 at 5). Plaintiff failed to timely serve Defendant Calvin. 19 On March 15, 2022, the Court ordered Plaintiff to either “(i) 20 file an Affidavit of Service or (ii) show good cause why this 21 case should not be dismissed for failure to timely serve pursuant to Fed. R. Civ. P. 4(m). (Doc. 17). Plaintiff failed to 22 respond to the Court’s Order … the Court presume[d] Plaintiff 23 received the Court’s Order because it was not returned undeliverable. 24
25 (Doc. 30 at 1–2). 26 Ultimately, the Magistrate Judge found that it was Plaintiff’s role, “not the Court’s 27 role [,] to [obtain] Defendant Calvin’s address” for timely service. (Id. at 3). The Magistrate 28 Judge reasoned that the Court provided Plaintiff adequate “opportunity to show good cause 1 why Defendant Calvin should not be dismissed from the lawsuit for failure to timely serve.” 2 (Id.) Further, Plaintiff failed to respond to the Court’s Order, and Plaintiff made no request 3 for additional time to serve Defendant Calvin. (Id.) Therefore, the Magistrate Judge 4 recommended that the Court dismiss Defendant Calvin without prejudice for Plaintiff’s 5 failure to timely serve her. (Id.) 6 The Court will now address Plaintiff’s Objection to the R&R of the Magistrate 7 Judge. 8 In her Response to Plaintiff’s Objection, Defendant Smith asserts that Plaintiff’s 9 Objection is “improper” because it does not actually contain objections to any specific 10 shortcomings regarding the findings and recommendation in the R&R. (Doc. 39). 11 Defendant Smith argues that an “objection requires specific written objections to the 12 findings and recommendations in the R&R” and that it is not required that the Court review 13 any part of an R&R to which there is no specific objection. (Id. at 1). The Court agrees 14 with Defendant Smith’s assertion and reasoning. It appears to this Court that Plaintiff’s 15 Objection relates primarily to Plaintiff’s understanding of the Affidavit of Service 16 mandated in the March 15, 2022, Court Order. (Doc. 32). However, Plaintiff does not 17 specifically dispute the Magistrate Judge’s finding that Plaintiff did not respond to the 18 Court Order to “(i) produce and Affidavit of Service or (ii) provide good cause why this 19 case should not be dismissed for failure to timely serve.” (Doc. 32, Doc. 30 at 3). Plaintiff 20 also did not dispute the finding that he did not request additional time to serve Defendant 21 Calvin within 60 days of the March 15, 2022, Court Order. (Doc. 32, Doc. 30 at 3). 22 Further, while Plaintiff objected to the Magistrate Judge’s recommendation that “the 23 Court dismiss Plaintiff’s complaint as to Defendant Calvin without prejudice for failure to 24 timely serve pursuant to Fed. R. Civ. P. 4(m),” he did so generally, stating that he was 25 “showing good cause not to dis-miss [sic] Defendant Calvin from this case.” (Doc. 32, 26 Doc. 30 at 3). However, this Court is not required to review the substance of an R&R based 27 on a general objection. Accord Martin v. Ryan, CV-13-00381-PHX-ROS, 2014 WL 28 5432133, *2 (D. Ariz. October 24, 2014) (“…when a petitioner raises a general objection 1 to an R&R, rather than specific objections, the Court is relieved of any obligation to review 2 it”) (collecting cases); Warling v. Ryan, CV-12-01396-PHX-DGC, 2013 WL 5276367, *2. 3 (D. Ariz. September 19, 2013) (“a general objection has the same effect as would a failure 4 to object”) (internal quotations and citation omitted). 5 Thus, because Plaintiff failed to state any specific objections to the Magistrate 6 Judge’s R&R, the Court is not obligated to consider Plaintiff’s Objection to the Magistrate 7 Judge’s R&R. However, out of an abundance of caution, the Court will address additional 8 concerns Plaintiff cited in his Objection. 9 First, in his Objection, Plaintiff asserted that he was unable to satisfy the Court Order 10 from March 15, 2022, because he “has no idea what an Affidavit of Service is,” and he 11 “cannot find anything on the issue.” (Doc. 32 at 1). He further requested that the Court 12 “send the proper paperwork so [he] can do what [he has] to do to get [Defendant Calvin] 13 on the stand.” (Id. at 3).
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Steven Sentre Merchant, No. CV-21-01593-PHX-JAT (ESW)
10 Plaintiff, ORDER
11 v.
12 Unknown Smith, et al.,
13 Defendants. 14 15 Pending before the Court is the Report and Recommendation (R&R) of the 16 Magistrate Judge recommending dismissal of Defendant Calvin without prejudice due to 17 Plaintiff Steven Sentre Merchant’s failure to timely effect service of process. (Doc. 30). 18 Plaintiff filed an Objection to the Report and Recommendation of the Magistrate Judge 19 (“Objection”). (Doc. 32), and Defendant Smith filed a Response to Plaintiff’s Objection. 20 (Doc. 39). 21 This Court “may accept, reject, or modify, in whole or in part, the findings or 22 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The district judge 23 must review the findings and recommendations of the magistrate judge de novo only if 24 there is an objection from one or both parties, not otherwise. United States v. Reyna-Tapia, 25 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); Schmidt v. Johnstone, 263 F. Supp. 2d 26 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo 27 review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 28 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 1 Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] 2 recommendations to which the parties object.”). District courts are not obligated to perform 3 any review of any issue to which no party has objected. Thomas v. Arn, 474 U.S. 140, 149 4 (1985); see also 28 U.S.C. § 636(b)(1) (“the court shall make a de novo determination of 5 those portions of the [report and recommendation] to which objection is made.”). 6 As Plaintiff states no objection to the procedural background laid out in the R&R, 7 the Court adopts it as set forth therein: 8 Plaintiff Steven Sentre Merchant, who is confined in the Arizona State Prison Complex-Lewis, filed a pro se civil rights 9 Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The Court 10 screened Plaintiff’s Complaint and ordered Defendants Smith and Calvin to answer Counts One and Three (Doc. 7 at 5). 11 Defendant Smith filed his Answer on February 4, 2022 (Doc. 12 9).
13 Service of process was returned unexecuted as to Defendant 14 Calvin (Doc. 12). On Nov. 11, 2021, the Court had ordered Plaintiff to either “obtain a waiver of service of the summons 15 or complete service of the Summons and Complaint on a 16 Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later” 17 or “the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(ii).” (Doc. 18 7 at 5). Plaintiff failed to timely serve Defendant Calvin. 19 On March 15, 2022, the Court ordered Plaintiff to either “(i) 20 file an Affidavit of Service or (ii) show good cause why this 21 case should not be dismissed for failure to timely serve pursuant to Fed. R. Civ. P. 4(m). (Doc. 17). Plaintiff failed to 22 respond to the Court’s Order … the Court presume[d] Plaintiff 23 received the Court’s Order because it was not returned undeliverable. 24
25 (Doc. 30 at 1–2). 26 Ultimately, the Magistrate Judge found that it was Plaintiff’s role, “not the Court’s 27 role [,] to [obtain] Defendant Calvin’s address” for timely service. (Id. at 3). The Magistrate 28 Judge reasoned that the Court provided Plaintiff adequate “opportunity to show good cause 1 why Defendant Calvin should not be dismissed from the lawsuit for failure to timely serve.” 2 (Id.) Further, Plaintiff failed to respond to the Court’s Order, and Plaintiff made no request 3 for additional time to serve Defendant Calvin. (Id.) Therefore, the Magistrate Judge 4 recommended that the Court dismiss Defendant Calvin without prejudice for Plaintiff’s 5 failure to timely serve her. (Id.) 6 The Court will now address Plaintiff’s Objection to the R&R of the Magistrate 7 Judge. 8 In her Response to Plaintiff’s Objection, Defendant Smith asserts that Plaintiff’s 9 Objection is “improper” because it does not actually contain objections to any specific 10 shortcomings regarding the findings and recommendation in the R&R. (Doc. 39). 11 Defendant Smith argues that an “objection requires specific written objections to the 12 findings and recommendations in the R&R” and that it is not required that the Court review 13 any part of an R&R to which there is no specific objection. (Id. at 1). The Court agrees 14 with Defendant Smith’s assertion and reasoning. It appears to this Court that Plaintiff’s 15 Objection relates primarily to Plaintiff’s understanding of the Affidavit of Service 16 mandated in the March 15, 2022, Court Order. (Doc. 32). However, Plaintiff does not 17 specifically dispute the Magistrate Judge’s finding that Plaintiff did not respond to the 18 Court Order to “(i) produce and Affidavit of Service or (ii) provide good cause why this 19 case should not be dismissed for failure to timely serve.” (Doc. 32, Doc. 30 at 3). Plaintiff 20 also did not dispute the finding that he did not request additional time to serve Defendant 21 Calvin within 60 days of the March 15, 2022, Court Order. (Doc. 32, Doc. 30 at 3). 22 Further, while Plaintiff objected to the Magistrate Judge’s recommendation that “the 23 Court dismiss Plaintiff’s complaint as to Defendant Calvin without prejudice for failure to 24 timely serve pursuant to Fed. R. Civ. P. 4(m),” he did so generally, stating that he was 25 “showing good cause not to dis-miss [sic] Defendant Calvin from this case.” (Doc. 32, 26 Doc. 30 at 3). However, this Court is not required to review the substance of an R&R based 27 on a general objection. Accord Martin v. Ryan, CV-13-00381-PHX-ROS, 2014 WL 28 5432133, *2 (D. Ariz. October 24, 2014) (“…when a petitioner raises a general objection 1 to an R&R, rather than specific objections, the Court is relieved of any obligation to review 2 it”) (collecting cases); Warling v. Ryan, CV-12-01396-PHX-DGC, 2013 WL 5276367, *2. 3 (D. Ariz. September 19, 2013) (“a general objection has the same effect as would a failure 4 to object”) (internal quotations and citation omitted). 5 Thus, because Plaintiff failed to state any specific objections to the Magistrate 6 Judge’s R&R, the Court is not obligated to consider Plaintiff’s Objection to the Magistrate 7 Judge’s R&R. However, out of an abundance of caution, the Court will address additional 8 concerns Plaintiff cited in his Objection. 9 First, in his Objection, Plaintiff asserted that he was unable to satisfy the Court Order 10 from March 15, 2022, because he “has no idea what an Affidavit of Service is,” and he 11 “cannot find anything on the issue.” (Doc. 32 at 1). He further requested that the Court 12 “send the proper paperwork so [he] can do what [he has] to do to get [Defendant Calvin] 13 on the stand.” (Id. at 3). However, in the R&R, the Magistrate Judge states, and the Court 14 agrees, “it is not the Court’s role to assist in obtaining Defendant Calvin’s address.” (Doc. 15 30 at 3). District courts cannot act as lawyer to any party, including pro se litigants. Bias v. 16 Moynihan, 508 F. 3d 1212, 1219 (9th Cir. 2007); see also Pliler v. Ford, 542 U.S. 225, 331 17 (2004) (federal “judges have no obligation to act as counsel or paralegal to pro se 18 litigants”). Further, pro se litigants have no rights that are unavailable to represented 19 litigants. Barnes v. United States, 241 F.2d 252 (9th Cir. 1956). Thus, this Court agrees 20 with the Magistrate Judge’s reasoning and finds that she did not err by not providing legal 21 aid to Plaintiff. 22 Second, Plaintiff also states in his Objection that Fed. R. Civ. P. 4(m) “allows a 23 court, in its discretion, to extend the period for service without a plaintiff showing good 24 cause.” (Doc. 32 at 2). The Ninth Circuit Court of Appeals has determined that there is no 25 specific test a court must use in making an extension decision, and a court’s discretion in 26 doing so is broad. In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). The Ninth Circuit has 27 also found that under certain circumstances, denial of requests for an extension of time to 28 serve is appropriate. Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007) (reversing a || grant of extension of time to serve because the duration of time granted was excessive). 2|| Therefore, the Court finds that the Magistrate Judge did not commit error by not sua sponte granting Plaintiff an extension of time to serve Defendant Calvin. 4 In conclusion, Plaintiff has failed to provide specific objections to the R&R, and the 5 || Court finds the Magistrate Judge committed no error. Thus, having reviewed the record as 6|| it relates to Plaintiff's Objection to the Magistrate Judge’s R&R, the Court accepts the 7\| R&R in its entirety. 8 Because of the foregoing, 9 IT IS ORDERED that Plaintiff Steven Sentre Merchant’s “Objection to the Report and Recommendation of Magistrate Judge Willett” (Doc. 32) is OVERRULED. 11 IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate || Judge Eileen S. Willett (Doc. 30) is ADOPTED. 13 IT IS FURTHER ORDERED directing the Clerk of Court to dismiss without prejudice (only) Defendant Calvin from this action. 15 Dated this 7th day of July, 2022. 16 17 A 18 James A. Teilborg 19 Senior United States District Judge 20 21 22 23 24 25 26 27 28
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