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Danford v. Ryan

United States District Court, D. Arizona

July 17, 2015

Buford Scott Danford, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

DIANE J. HUMETEWA, District Judge.

This matter is before the Court on Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) (the "Petition") and the Report and Recommendation ("R&R") issued by United States Magistrate Judge Michelle H. Burns (Doc. 23). The R&R explains that Petitioner was directed in the Screening Order (Doc. 8) to file and serve a notice of change of address, if applicable, in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner was warned that if he failed to comply with the provisions in the Screening Order, the action would be dismissed pursuant to Fed.R.Civ.P. 41(b).

As further explained in the R&R, the docket for this case reflects that mail sent to Plaintiff on June 1, 2015 was returned as undeliverable because Petitioner failed to notify the Court of a new address. Judge Burns then issued an Order (Doc. 21) on June 17, 2015, giving Petitioner ten days to either file a notice of change of address, or show cause why the case should not be dismissed for failure to prosecute. Petitioner did not respond to the Order, nor has he otherwise communicated with the Court. Because it appears Petitioner has abandoned his claims, Judge Burns recommends that the Petition be dismissed for failure to prosecute and that Respondents' motion to dismiss be denied as moot.

Judge Burns advised the parties that they had fourteen days to file objections and that the failure to file timely objections "may result in the acceptance of the Report and Recommendation by the district court without further review." (Doc. 23 at 2) (citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc )). The parties have not filed objections and the time to do so has expired. Absent any objections, the Court is not required to review the findings and recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), "does not on its face require any review at all... of any issue that is not the subject of an objection."); Reyna-Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").

Nonetheless, the Court has reviewed the R&R and agrees with its findings and recommendations. The Court will, therefore, accept the R&R and dismiss the Petition. See 28 U.S.C. § 636(b)(1)(C) ("A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."); Fed.R.Civ.P. 72(b)(3) (same).

Accordingly,

IT IS ORDERED that Magistrate Judge Burn's R&R (Doc. 23) is accepted and adopted as the order of this Court.

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute.

IT IS FURTHER ORDERED that Respondents' Motion to Dismiss (Doc. 19) is DENIED as moot.

IT IS FINALLY ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.


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