Moering v. United States ( 2023 )

1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Andrew Tyraye Moering, ) No. CV-22-00877-PHX-SPL (ESW) ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) United States of America, et al., ) 12 ) 13 Defendants. ) ) 14 ) 15 On May 12, 2022, Plaintiff Andrew Tyraye Moering, and several other prisoners 16 then confined the Arizona State Prison Complex-Eyman, filed a pro se civil rights 17 Complaint pursuant to 42 U.S.C. § 1983 in Mitchell v. United States, CV 22-00814-PHX- 18 SRB (MHB). Plaintiff also filed an Application to Proceed In Forma Pauperis (Doc. 4). In 19 a May 24, 2022 Order, the Court severed CV 22-00814 into individual actions for each 20 Plaintiff, dismissed the Complaint without prejudice, and gave each Plaintiff 30 days to 21 file an amended complaint in his individual case. This case was opened for Plaintiff 22 Moering and assigned the above case number. 23 Because the Court had not received an amended complaint from Plaintiff, on July 24 11, 2022, the Court denied the Application to Proceed as moot and dismissed this case for 25 failure to comply with a Court order. Judgment was entered the same day. On July 14, 26 2022, Plaintiff filed a Motion to Exceed Page Limit (Doc. 9) and lodged a proposed First 27 Amended Complaint (Doc. 10). The Court then directed the Clerk of Court to vacate the 28 July 11, 2022 Judgment and reopen this case (Doc. 11). Upon screening, the Court found 1 Plaintiff had adequately stated an Eighth Amendment threat to safety claim in Count Two 2 against Defendants Gonzalez, Medley, Doe 1, and Doe 2 (Doc. 11 at 7). The Court further 3 provided Plaintiff with 120 days to discovery the actual names of Defendants Doe 1 and 4 Doe 2 and file a Notice of Substitution (Doc. 11 at 7–8), and instructed Plaintiff on serving 5 Defendants Gonzalez and Medley (Doc. 11 at 9–11). 6 On January 5, 2023, the Court ordered Plaintiff to show cause why this action should 7 not be dismissed for failure to prosecute (Doc. 14). On May 22, 2023, Magistrate Judge 8 Eileen S. Willett issued a Report & Recommendation (“R&R”) (Doc. 15), recommending 9 the First Amended Complaint (Doc. 13) be dismissed without prejudice for Plaintiff’s 10 failure to comply with the Court’s Orders and to prosecute pursuant to Rule 41(b) of the 11 Federal Rules of Civil Procedure. Judge Willett advised the parties that they had fourteen 12 (14) days to file objections to the R&R and that failure to file timely objections could be 13 considered a waiver of the right to obtain review of the R&R (Doc. 42 at 5). See 28 U.S.C. § 14 636(b)(1); Fed. R. Civ. P. 6, 72; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 15 Cir. 2003). 16 A district judge “may accept, reject, or modify, in whole or in part, the findings or 17 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). When a party files a 18 timely objection to an R&R, the district judge reviews de novo those portions of the R&R 19 that have been “properly objected to.” Fed. R. Civ. P. 72(b). A proper objection requires 20 specific written objections to the findings and recommendations in the R&R. See United 21 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); 28 U.S.C. § 636(b) (1). It 22 follows that the Court need not conduct any review of portions to which no specific 23 objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 24 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial 25 economy). 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. at 149 28 (“[Section 636(b)(1)] does not… require any review at all… of any issue that is not the 1 | subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de 2| 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. The Court 4} will adopt the R&R and dismiss the First Amended Complaint without prejudice. See 28 5| U.S.C. § 636(b)(1) (stating that the district court “may accept, reject, or modify, in whole 6| or in part, the findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (The district judge may accept, reject, or modify the recommended disposition; 8 | receive further evidence; or return the matter to the magistrate judge with instructions.”). 9| Accordingly, 10 IT IS ORDERED that the Magistrate Judge’s Report and Recommendation (Doc. 11 | 15) 1s accepted and adopted by the Court. 12 IT IS FURTHER ORDERED that the First Amended Complaint (Doc. 13) is 13 | dismissed without prejudice. 14 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action 15 | and enter judgment accordingly. 16 Dated this 23rd day of June, 2023. 17 19 United States District Judge 20 21 22 23 24 25 26 27 28