Reed v. Trinity Services Group Incorporated

• Court: District Court, D. Arizona
• Decided: June 14, 2022
• Docket: 2:21-cv-00016
• Status: Unknown

Opinion

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

9 Kenneth W Reed, No. CV-21-00016-PHX-JAT (CDB)

10 Plaintiff, ORDER

11 v.

12 Trinity Services Group Incorporated, et al.,

13 Respondents. 14 15 Pending before the Court is the Report and Recommendation (R&R) of the 16 Magistrate Judge recommending dismissal of Defendants Gaye and Tuozzo without 17 prejudice for Plaintiff Kenneth W. Reed’s failure to timely effect service of process on 18 them. (Doc. 125). Plaintiff filed objections to the R&R. (Doc. 135). 19 This Court “may accept, reject, or modify, in whole or in part, the findings or 20 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 21 the district judge must review the magistrate judge’s findings and recommendations de 22 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 23 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 24 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo 25 review of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 26 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 27 Cir. 2009) (the district court “must review de novo the portions of the [Magistrate Judge’s] 28 recommendations to which the parties object.”). District courts are not required to conduct 1 “any review at all ... of any issue that is not the subject of an objection.” Thomas v. Arn, 2 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) (“the court 3 shall make a de novo determination of those portions of the [report and recommendation] 4 to which objection is made.”). 5 Because Plaintiff does not object to the procedural background laid out in the R&R, 6 the Court adopts it as set forth therein: Plaintiff, who is in custody, initiated this matter by filing a 7 complaint on November 12, 2019. (ECF No. 1-2 at 2). Plaintiff 8 proceeds pro se in this civil rights matter, which was removed from state court on November 25, 2020. Plaintiff filed a First 9 Amended Complaint on May 17, 2021. (ECF No. 25). On June 10 10, 2021, the Court ordered Defendants Montaño, Merriman, Gaye, Muko, and Tuozzo to answer Count One of the First 11 Amended Complaint and dismissed all other named defendants 12 and Count Two of the First Amended Complaint. (ECF No. 27). 13

14 In the Order issued June 10, 2021, the Court stated:

15 If Plaintiff does not either obtain waiver of service of the 16 summons or complete service of the Summons and Complaint on a Defendant within 90 days of the filing of the Complaint 17 or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. 18 Fed. R. Civ. P. 4(m). 19 (ECF No. 27 at 18). Accordingly, initial service in this matter 20 was required by August 16, 2021. 21 Defendant Merriman answered the First Amended Complaint 22 on July 1, 2021, and a scheduling order was issued July 2, 23 2021. (ECF No. 29; ECF No. 30). Defendant Montaño answered the First Amended Complaint on September 20, 24 2021. (ECF. No. 49). Discovery in this matter with regard to 25 Defendants Montaño and Merriman closed December 10, 2021. 26

27 Service packets for Defendants Gaye, Muko, and Tuozzo were returned to the Court and forwarded to the United States 28 Marshal for service. Service on Defendant Gaye was returned 1 as unexecuted on August 2, 2021, noting Gaye is “no longer a staff member.” (ECF No. 41). Service on Defendant Tuozzo 2 was returned as unexecuted on August 12, 2021, noting Tuozzo 3 is “retired.” (ECF. No. 44). Service on Defendant Muko was returned as unexecuted on September 13, 2021. (ECF No. 43). 4 On October 18, 2021, the Court ordered David Shinn, the 5 Director of the Arizona Department of Corrections, Rehabilitation and Reentry (“ADCRR”) to provide the last 6 known addresses of Defendants Gaye, Muko, and Tuozzo 7 under seal, and extended the deadline for service on these Defendants to December 17, 2021. (ECF No. 56) [footnote 8 omitted]. Director Shinn complied with the order at ECF No. 9 56 on November 15, 2021 (ECF No. 71), and service packets for Defendants Muko, Gaye, and Tuozzo were provided to the 10 United States Marshal. Service on Defendant Tuozzo was 11 returned as unexecuted on December 15, 2021, with the notation that this Defendant was not at the last address known 12 to Director Shinn. (ECF No. 81). Service on Defendant Gaye 13 was returned as unexecuted on February 7, 2022, with the notation that the United States Marshal had endeavored to 14 effect personal service on Defendant Gaye at the last known address provided by Director Shinn on January 18 and 15 February 3, 2022, and that Defendant Gaye “no longer lives at 16 the address provided.” (ECF No. 102). Service on Defendant Muko was returned as executed on February 3, 2022. (ECF No. 17 101). 18 The CM/ECF docket in this matter indicates Plaintiff failed to 19 effect[] service of process on Defendants Gaye and Tuozzo 20 within the time required by the Court’s orders. Accordingly, on February 23, 2022, Plaintiff was allowed until March 16, 2022, 21 to show cause why Defendants Gaye and Tuozzo and all of 22 Plaintiff’s claims against Defendants Gaye and Tuozzo should not be dismissed for Plaintiff’s failure to comply with the 23 Court’s orders regarding service and Plaintiff’s failure to effect 24 service of process on these Defendants as required by Rule 4 of the Federal Rules of Civil Procedure. In response to the 25 Order to Show Cause, Plaintiff asserts that on October 7, 2021, 26 he requested a subpoena directed to the ADCRR’s “personnel records custodian” to provide “certain records and information 27 that would likely contain some useful intelligence concerning the whereabouts” of Defendants Gaye and Tuozzo. (ECF No. 28 124 at 2 & 3). Plaintiff further notes he has no access to the 1 Internet, and therefore cannot use “a number of applications … one might use to locate persons whose circumstances have 2 diminished, or whose preferences have caused them to 3 diminish their public visibility…” (Id.). Plaintiff also states he “…lacks the monetary resources he would need to hire an 4 attorney or an investigator, or to pay someone (without the 5 prison system) to conduct a search for information regarding Defendant Gaye’s and Tuozzo’s whereabouts.” (Id.) Plaintiff 6 contends it is “utterly inconceivable that the custodian of the 7 [ADCRR’s] personnel records would not require each and all of the [ADCRR’s] retirees to periodically update their own 8 files to ensure that their benefits … and any income tax 9 reporting information … are being sent to the right places.” (Id.) Plaintiff also asserts “that, had he been permitted to 10 conduct his own study of the information and documents 11 whose production he sought, he would have either discovered” the Defendants’ “whereabouts directly or, otherwise, lighted 12 upon information which would have led him to the discovery 13 of their whereabouts.” (Id.) Accordingly, Plaintiff argues, his “ostensible failure to perfect service of process” “was the result 14 of his having been unable to do so.” (ECF. No. 124 at 5). 15 (Doc. 125 at 1–4). Ultimately, the Magistrate Judge found that it was Plaintiff’s 16 responsibility, not the Court’s, to furnish the Defendants’ address to the United States 17 Marshal for service and privacy concerns precluded ADCRR from providing any 18 information from the Defendants’ personnel records other than their last known addresses. 19 (Id. at 5). As such, the Magistrate Judge recommends dismissal of Defendants Gaye and 20 Tuozzo for Plaintiff’s failure to timely serve them. (Id.) 21 The Court will now turn to Plaintiff’s objections. 22 First, Plaintiff generally objects to the Magistrate Judge’s “discordant and 23 supposititiously censorious analysis” and her conclusion to recommend dismissal of 24 Defendants’ Gaye and Tuozzo. (Doc. 135 at 2). However, the Court has no duty to review 25 the substance of an R&R based on a general objection. Accord Martin v. Ryan, CV-13- 26 00381-PHX-ROS, 2014 WL 5432133, *2 (D. Ariz. October 24, 2014) (“…when a 27 petitioner raises a general objection to an R&R, rather than specific objections, the Court 28 is relieved of any obligation to review it.”) (collecting cases); Warling v. Ryan, CV-12- 1 01396-PHX-DGC, 2013 WL 5276367, *2 (D. Ariz. September 19, 2013) (“A general 2 objection has the same effect as would a failure to object”) (internal quotations and citation 3 omitted). 4 Next, Plaintiff appears to object to the Magistrate Judge’s prior denials of his 5 requests to subpoena Defendant Gaye’s and Tuozzo’s personnel records to allow him to 6 “conduct his own study of those records for information regarding” Defendant Gaye’s and 7 Tuozzo’s whereabouts. (Doc. 135 at 6). Plaintiff contends that the last known addresses 8 provided to the Court were inaccurate such that he needs additional information from 9 ADCRR. (Id.) The Magistrate Judge found, and the Court agrees, that Plaintiff has not 10 shown that the last known addresses provided by ADCRR were incorrect when provided 11 to the Court, intentionally so or otherwise. The Magistrate Judge also noted that there is 12 “no basis to presume that disclosure of these individual’s personnel record would reveal 13 any other address for them other than that already provided,” and “issues regarding privacy 14 would presumably bar the ADCRR from providing any information regarding former 15 employees other than a last known address.” (Doc. 125 at 5). The Court agrees with the 16 Magistrate Judge’s reasoning and finds that the Magistrate Judge did not err in not allowing 17 Plaintiff to seek additional personnel information beyond the provided last known 18 addresses. 19 Next, Plaintiff appears to object to the Magistrate Judge’s failure to require David 20 Shinn to respond to the Magistrate Judge’s October 18, 2021, Order himself. (Doc. 135 at 21 6–7). However, because David Shinn is the Director of the ADCRR, the Magistrate Judge’s 22 acceptance of the Assistant Attorney General’s response on behalf ADCRR (and David 23 Shinn) was not in error. Furthermore, is not clear to the Court that David Shinn would have 24 access to different or more recent last known address information than his employees at 25 ADCRR that furnished the information in response to the court order. 26 Finally, to the extent that Plaintiff has raised additional objections that are collateral 27 to the determinative factual and legal issues underlying the R&R, the Court declines to 28 address them. 1 Having reviewed the record as it relates to Plaintiff's objections, the Court accepts 2|| the R&R in its entirety. 3 Accordingly, 4 IT IS ORDERED that Plaintiff Kenneth W. Reed’s “Objections to, and Request for Court’s De Novo Review of Magistrate Judge’s March 18, 2022, Report and 6 || Recommendation” (Doc. 135) is OVERRULED. 7 IT IS FURTHER ORDERED That the Report and Recommendation of Magistrate 8 || Judge Camille D. Bibles (Doc. 125) is ADOPTED. 9 IT IS FURTHER ORDERED directing the Clerk of Court to dismiss without 10 || prejudice Defendants Pa Omar Gaye and Paul Tuozzo from this action. 11 Dated this 14th day of June, 2022. 12 A 13 James A. Teilborg 14 Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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