United States District Court, D. Arizona
July 27, 2015
Thomas Bartholomew Layden, Plaintiff,
Charles L. Ryan, et al., Defendants.
DIANE J. HUMETEWA, District Judge.
Presently pending before the court is the Report and Recommendation of United States Magistrate Judge Deborah M. Fine ("R & R") (Doc. 54), recommending denial of pro se plaintiff Thomas Bartholomew Layden's motion for leave to amend his First Amended Complaint and for leave to docket his lodged Second Amended Complaint (Doc. 29), and denial of his four motions to supplement (Docs. 36, 43, 44 and 45).
The R & R thoroughly and accurately sets forth the procedural history of this action and the pending motions. See R & R (Doc. 54) at 2:1-5:23. The R & R proceeds to set forth the governing legal standards and then analyzes Plaintiff's pending motions in turn. For the most part, the R & R recommends denial of these various motions because amendment would be futile. See, e.g., R & R (Doc. 54) at 9:18-21; id. at 12:10-12.
The R & R was filed and served upon the parties on May 22, 2015. The R & R explicitly advised the parties that, pursuant to Fed.R.Civ.P. 72, they "shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court." R & R (Doc. 54) at 13:10-12 (emphasis added). The R & R also explicitly advised the parties that "[f]ailure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues." ( Id. at 13:17-19) (citation omitted). Within that 14 day time frame, Plaintiff did not file any objections, but he did file a "Motion to Accept Plaintiff's Response to Defendants [sic] Report and Recommendation (Doc. 57) at 1. The Court construes this as Plaintiff's request for an extension of time in which to file his objections to the R & R. So construed, the Court deems Plaintiff's Declaration (Doc. 64) and attached exhibits to be his objections to the R & R. It also will consider these purported objections to be timely, although they were filed outside the 14 day time frame which the R & R permitted.
When reviewing an R & R issued by a Magistrate Judge, this court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). "Of course, de novo review of a R & R is only required when an objection is made to the R & R[.]" Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir. 2005) (citation omitted); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc)) (emphasis in original) (Section 636(b)(1) "makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.") That is because "[n]either the Constitution nor the [Federal Magistrates Act] requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." Reyna-Tapia, 328 F.3d at 1121 (citations omitted); Indeed, construing the Federal Magistrates Act, the Supreme Court has found that that "statute does not on its face require any review at all, by either the district court or the court of appeals, of any issue that is not the subject of an objection. " Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added). Consistent with the foregoing authority, as explained next, because Plaintiff did not object to any portion of the R & R, the Court is not conducting a de novo review.
Nowhere in his "declaration, " which the Court has deemed to be his objections to the R & R, does Plaintiff even mention the R & R much less identify any "portions" thereof or "specif[y] proposed findings or recommendation[s]" to which he objects. See 28 U.S.C. § 636(b)(1) ("A judge... shall make a de novo determination of those portions of the report or specified proposed findings or recommendation to which objection is made."). Rather, Plaintiff's 16 page declaration is a detailed recitation of his version of the facts underlying this lawsuit. Plaintiff attaches two exhibits to his declaration which also do not specifically identify any portions of the R & R to which he objects. Exhibit A consists of 37 pages of Arizona Department of Corrections Health Needs Requests. Exhibit B, which is 20 pages, primarily consists of what appear to be notations and orders by various health care professionals whom Plaintiff saw on the prison's medical unit and elsewhere. Because Plaintiff's declaration and accompanying exhibits are wholly void of any objections, much less specific objections, to any part of the R & R, this Court is not required to review the R & R at all. See Thomas, 474 U.S., at 149.
Accordingly, the Court hereby ORDERS that:
(1) United States Magistrate Judge Fine's Report and Recommendation (Doc. 54) is ADOPTED.
(2) Plaintiff's motion seeking leave to docket the Second Amended Complaint (Doc. 29) lodged at Doc. 30 is DENIED. The lodged complaint at Doc. 30 should be stricken from the record in this matter.
(3) Plaintiff's motion to supplement his complaint (Doc. 36) is DENIED.
(4) Plaintiff's motion seeking to supplement the Second Amended Complaint to add Alison Scott (Doc. 43) is DENIED.
(5) Plaintiff's motion seeking to supplement his proposed lodged Second Amended Complaint to add Pam Shields as a defendant (Doc. 44) is DENIED.
(6) Plaintiff's motion seeking to amend his lodged proposed Second Amended Complaint to add a claim against Dr. Kamal Rastogi (Doc. 45) is DENIED.