Benge v. Ryan ( 2019 )

1 MH 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Joseph Benge, No. CV 18-02544-PHX-MTL (CDB) 10 Plaintiff, 11 v. ORDER 12 Charles L. Ryan, et al., 13 Defendants. 14 15 In an August 29, 2019 Order, Magistrate Judge Camille D. Bibles issued an Order 16 noting that Plaintiff, who was previously confined in the Arizona State Prison Complex- 17 Florence, appeared to have been released from prison on August 9, 2019, and had not filed 18 a notice of change of address. The Magistrate Judge ordered Plaintiff to show cause, on or 19 before September 27, 2019, why this action should not be dismissed for failure to comply 20 with the Court’s October 19, 2018 Order, which expressly required Plaintiff to file a notice 21 of change of address and, within 30 days of his release, either (1) notify the Court that he 22 intended to pay the unpaid balance of his filing fee or (2) file a non-prisoner application to 23 proceed in forma pauperis. 24 On September 23, 2019, Plaintiff filed a Notice of Change of Address identifying 25 his new address. He did not notify the Court of his intention to pay the balance of the filing 26 fee or file a non-prisoner application to proceed in forma pauperis. On October 18, 2019, 27 the Magistrate Judge issued a Report and Recommendation recommending that this matter 28 be dismissed without prejudice for failure to comply with a court order. On November 4, 1 2019, Plaintiff filed an Application to Proceed In District Court Without Prepaying Fees 2 or Costs (Doc. 24). 3 This Court “may accept, reject, or modify, in whole or in part, the findings or 4 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 5 the district judge must review the magistrate judge’s findings and recommendations de 6 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 7 1114, 1121 (9th Cir. 2003) (en banc); accord Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 8 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review 9 of factual and legal issues is required if objections are made, ‘but not otherwise.’”); 10 Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th 11 Cir. 2009) (the district court “must review de novo the portions of the [magistrate judge’s] 12 recommendations to which the parties object.”). District courts are not required to conduct 13 “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 14 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make 15 a de novo determination of those portions of the [R & R] to which objection is made.”). 16 The Magistrate Judge’s Report and Recommendation recommends dismissal of this 17 action without prejudice for failure to comply with the Court’s October 19, 2018 and 18 August 29, 2019 Orders. Plaintiff did not object to the Report and Recommendation, and 19 his Application to Proceed In District Court Without Prepaying Fees or Costs does not 20 contain any explanation for his failure to comply with the Court’s prior Orders. 21 Accordingly, the Magistrate Judge’s Report and Recommendation will be accepted. 22 IT IS ORDERED: 23 (1) The Magistrate Judge’s Report and Recommendation (Doc. 23) is accepted. 24 (2) The Second Amended Complaint (Doc. 17) and this action are dismissed 25 without prejudice for failure to comply with Court orders. The Clerk of Court must enter 26 judgment accordingly. 27 . . . . 28 . . . . 1 (3) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 24) is denied as moot. 3 Dated this 17th day of December, 2019. 4 ° Michel T. Sihurde WMchack T. ginurde Michael T. Liburdi 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28