Arriaga v. Arizona Department of Corrections ( 2021 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Juan Carlos Arriaga, No. CV-20-00084-PHX-DJH (ESW) 10 Plaintiff, ORDER 11 v. 12 Arizona Department of Corrections, et al., 13 Defendants. 14 15 Pending before the Court is Plaintiff’s Request to Substitute Nurse Westlake for 16 Defendant Wesley (Doc. 31) and the November 6, 2020, Report and Recommendation 17 (“R&R”) issued by Magistrate Judge Eileen S. Willett (Doc. 35). In her R&R, Magistrate 18 Judge Willett recommends this Court dismiss Defendant Wesley for failure to serve 19 pursuant to Federal Rule of Civil Procedure 4(m), and deny Plaintiff’s request to substitute 20 “Nurse Westlake” for Defendant Wesley (Doc. 35). Magistrate Judge Willett gave the 21 parties 14 days to file specific written objections with this Court. (Id. at 4). She also 22 cautioned that “[f]ailure to file timely objections may result in the acceptance of the Report 23 and Recommendation by the District Court without future review.” (Id.) 24 Plaintiff filed a three-sentence Objection on December 10, 2020, in which he states, 25 “Due to COVID-19 I was unable to get help. From the discovery I got the true name of 26 Nurse Wesley. As such, I should be allowed to substitute.” (Doc. 37). Plaintiff implies 27 that the untimeliness of his Objection is due to being infected with COVID-19. Although 28 unclear, the Court will assume these circumstances and excuse his late filing. 1 I. Standard of Review 2 This Court must “make a de novo determination of those portions of the report or 3 specified proposed findings or recommendations to which” Petitioner objects. 28 U.S.C. 4 § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de 5 novo any part of the magistrate judge’s disposition that has been properly objected to.”); 6 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (same). In 7 doing so, the Court “may accept, reject, or modify, in whole or in part, the findings or 8 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. 9 P. 72(b)(3). At the same time, however, the relevant provision of the Federal Magistrates 10 Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all. . . of any 11 issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1989); 12 see also Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (“Of course, de novo 13 review of a R&R is only required when an objection is made to the R&R”). It is well- 14 settled that “‘failure to object to a magistrate judge’s factual findings waives the right to challenge those findings[.]’” Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th Cir. 2015) 15 (quoting Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (internal quotation marks 16 omitted) (footnote omitted)). 17 II. Discussion 18 Plaintiff’s sole objection to the R&R relates to Magistrate Willett’s conclusion that 19 the substitution of Nurse Westlake for Defendant Wesley was improper under Fed. R. Civ. 20 P. 25. (Doc. 35 at 4). Judge Willett correctly found the none of the circumstances 21 justifying substitution of a party in a civil matter existed, and explained that “Should 22 Plaintiff wish to name Nurse Westlake as a party, the appropriate mechanism to attempt to 23 do so is a properly filed, timely motion to amend the First Amended Complaint.” (Id. at 24 4). Plaintiff suggests that discovery has borne out the true identify of a defendant. (Doc. 25 37). Judge Willett correctly explained the process by which Plaintiff may seek to add this 26 defendant to his First Amended Complaint. Substitution, however, is not the proper 27 remedy. Accordingly, this objection is overruled. The Court will adopt the R&R as the 28 Order of this Court. 1} TI. Conclusion 2 Accordingly, 3 IT IS ORDERED that Magistrate Judge Willett’s Report and Recommendation 4\| (Doc. 35) is ACCEPTED and ADOPTED as the Order of this Court. Plaintiffs request || to substitute Nurse Westlake for Defendant Wesley (Doc. 31) is DENIED. 6 IT IS FURTHER ORDERED that Defendant Wesley is dismissed from Plaintiff’ s First Amended Complaint (Doc. 14) for failure to serve pursuant to Fed. R. Civ. P. □□□□□ 8 Dated this 12th day of May, 2021. 9 10 LG ul □□□ norable' Diang4. Huretewa 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-