Tate 258794 v. Hernandez

Opinion

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Jonatha n Tate, ) No. CV-19-05089-PHX-SPL (JFM) ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Unknown Hernandez, et al., ) 12 ) 13 Defendants. ) ) 14 )

15 On September 4, 2019, Plaintiff Jonathan Tate, who is confined in the Arizona State 16 Prison Complex-Rast, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 17 (Doc. 1). Plaintiff filed a Motion to Amend (Doc. 36), which was granted (Doc. 40), and 18 on July 16, 2020, Plaintiff filed a First Amended Complaint (Doc. 41). 19 On July 22, 2020, the Honorable James F. Metcalf, United States Magistrate Judge, 20 issued a Report and Recommendation (“R&R”) (Doc. 42), recommending that Defendant 21 Hernandez be required to respond to the threat of safety claim in Count 1, and dismissing 22 all other claims in Count 1, as well as Counts 2 and 3. Judge Metcalf further advised that 23 parties that they had fourteen (14) days to file objections to the R&R and that failure to file 24 timely objections could be considered a waiver of the right to obtain review of the R&R 25 (Doc. 42 at 8-9) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). 26 The parties did not file objections, which relieves the Court of its obligation to 27 review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 28 (1985) (“[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must 2| determine de novo any part of the magistrate judge’s disposition that has been properly objected to.”). The Court has nonetheless reviewed the R&R and finds that it is well-taken. 4) The Court will thus adopt the R&R in full. See 28 U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole or in part, the findings or 6 | recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge 7 | may accept, reject, or modify the recommended disposition; receive further evidence; or 8 | return the matter to the magistrate judge with instructions.”). Accordingly, 9 IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. 42) is accepted and adopted by the Court. 11 IT IS FURTHER ORDERED that Defendant Hernandez shall be required to 12 | respond to the threat of safety claim in Count | of the First Amended Complaint (Doc. 41). 13 IT IS FURTHER ORDERED that all other claims in Count 1, as well as Counts 14| 2 and 3, are dismissed without prejudice. 15 IT IS FURTHER ORDERED that Defendants Diaz, Gonzalez, and Shinn are dismissed without prejudice. 17 Dated this 21st day of August, 2020. 18 19 Ae 20 United States District Addze 21 22 23 24 25 26 27 28