Outley v. Shinn

Opinion

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

9 Michael Dewayne Outley, Jr., No. CV-21-00084-PHX-JAT (JFM)

10 Plaintiff, ORDER

11 v.

12 David Shinn, et al.,

13 Defendants. 14 15 Pending before the Court is the Report and Recommendation (“R&R”) of 16 Magistrate Judge James F. Metcalf (Doc. 29) regarding Plaintiff’s Motion to Amend his 17 Complaint (Doc. 25). The R&R recommends that: (a) Plaintiff’s Motion to Amend be 18 granted; (b) Plaintiff’s First Amended Complaint (“FAC”) (lodged as Attachment 3 to the 19 Motion to Amend, Doc. 25-2 at 2-17) be filed; (c) Defendant Doe be dismissed from the 20 FAC without prejudice; (d) Counts Two and Three of the FAC be dismissed without 21 prejudice; and (e) Defendants Shinn and Stolc be required to respond to the First 22 Amendment Claim in Count One of the FAC, in their individual and official capacities.1 23 Magistrate Judge Metcalf advised the parties that they had fourteen days to file objections 24 to the R&R. (Doc. 29 at 17). Neither party has filed objections.

25 1 Missing from Magistrate Judge Metcalf’s final recommendations at the end of the R&R is his recommendation that the Fourteenth Amendment claims contained in Count One of 26 the FAC be dismissed for failure to state a claim, as reasoned on page 12 of the R&R. (Doc. 29 at 12). Because dismissal of the Fourteenth Amendment claims from Count One appears 27 to be implicitly included in his recommendation that Defendants Shinn and Stolc be ordered to respond to the First Amendment claim (but not the Fourteenth Amendment 28 claims) contained in Count One of the FAC, the Court considers the R&R to recommend the dismissal of the Fourteenth Amendment claims from Count One. (See Doc. 29 at 18). 1 A district court’s standard of review of a magistrate judge’s report and 2 recommendation turns on whether the parties have timely objected. Fed. R. Civ. P. 72(b). 3 It is “clear that the district judge must review the magistrate judge’s findings and 4 recommendations de novo if objection is made, but not otherwise.” United States v. Reyna- 5 Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. 6 Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court 7 concludes that de novo review of factual and legal issues is required if objections are made, 8 ‘but not otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 9 F.3d 1027, 1032 (9th Cir. 2009) (The district court “must review de novo the portions of 10 the [Magistrate Judge’s] recommendations to which the parties object.”). District courts 11 are not required to conduct “any review at all . . . of any issue that is not the subject of an 12 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 13 § 636(b)(1) (“[T]he court shall make a de novo determination of those portions of the 14 [report and recommendation] to which objection is made.”).2 “Failure to make timely 15 objection to the magistrate [judge]’s report prior to its adoption by the district judge may 16 constitute a waiver of appellate review of the district judge’s order.” Fed. R. Civ. P. 72(b), 17 NOTES OF ADVISORY COMMITTEE ON RULES—1983, citing United States v. Walters, 638 18 F.2d 947 (6th Cir. 1981). 19 Accordingly, in the absence of objections, the Court agrees with the recommended 20 decision within the meaning of Federal Rule of Civil Procedure 72(b). See 28 U.S.C. § 21 636(b)(1) (“A [district court judge] may accept, reject, or modify, in whole or in part, the 22 findings or recommendations made by the magistrate judge.”). 23 24 2 The Court notes that the Notes of the Advisory Committee on Rules appear to suggest a 25 clear error standard of review under Federal Rule of Civil Procedure 72(b), citing Campbell. Fed. R. Civ. P. 72(b), NOTES OF ADVISORY COMMITTEE ON RULES—1983 citing 26 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. denied, 419 U.S. 879 (The court “need only satisfy itself that there is no clear error on the face of the 27 record in order to accept the recommendation.”). The court in Campbell, however, appears to delineate a standard of review specific to magistrate judge findings in the motion to 28 suppress context. See Campbell, 501 F.2d at 206–207. As such, this Court follows the 9th Circuit’s more recent decision in Reyna-Tapia on this issue. 1 IT IS THEREFORE ORDERED that the R&R of Magistrate Judge Metcalf (Doc. 2|| 29) is accepted. 3 IT IS FURTHER ORDERED that: 4 (a) Plaintiff's Motion to Amend (Doc. 25) is GRANTED; 5 (b) Plaintiff's First Amended Complaint (lodged as Attachment 3 to the Motion 6 to Amend, Doc. 25-2 at 2-17) be FILED; 7 (c) Defendant Doe is DISMISSED from the First Amended Complaint 8 WITHOUT PREJUDICE; 9 (d) | Counts Two and Three of the First Amended Complaint are DISMISSED 10 WITHOUT PREJUDICE; 11 (e) Defendants Shinn and Stolc are ORDERED to RESPOND to the First 12 Amendment claim in Count One of the First Amended Complaint, in their 13 individual and official capacities, except the Fourteenth Amendment claims 14 in Count One of the First Amended Complaint are DISMISSED 15 WITHOUT PREJUDICE. 16 Dated this 6th day of October, 2021. 17 18 A 19 James A. Teilborg 20 Senior United States District Judge 21 22 23 24 25 26 27 > The Court notes that the proposed FAC lodged as Doc. 25-2 is not in compliance with | Rule 15.1(a), but finds that it is adequate to be filed even though it has the underlined additions and is not a clean copy. -3-