United States District Court, D. Arizona
J. Humetewa, United States District Judge
February 21, 2018 Magistrate Judge Eileen S. Willett assessed
and screened pro se Plaintiff John Charles Holmes'
Application for Deferral or Waiver of Court Fees or Costs and
Consent to Entry of Judgment (“Application”)
(Doc. 3) and his Complaint (Doc. 1). Judge Willett granted
Plaintiff's Application, but in screening the Complaint
pursuant to 28 U.S.C. § 1915(e)(2), recommended
dismissal of Count III without leave to amend. (Doc. 11).
Thereafter, on March 6, 2018, Plaintiff sought to amend his
complaint. (Doc. 12). Judge Willett denied Plaintiff's
motion to amend without prejudice because Plaintiff failed to
comply with LRCiv. 15.1(a). (Doc. 14). On March 26, 2018,
Plaintiff renewed his request to amend his complaint,
claiming his motion now complied “with all required
rules.” (Doc. 15). An election for district judge
jurisdiction was then made, and by random draw the case was
reassigned to this Court. No response has been filed to the
motion to amend and the time to do so has passed.
A. Judge Willett's R&R - Dismissal of Count
Willett recommends dismissal of Count III in Plaintiff's
Complaint, which seeks to impose liability on the City of
Mesa through the actions of its employees under the legal
theory of respondeat superior. (Doc. 11 at 4). As noted by
the magistrate judge, however, a municipality cannot be
liable for the acts or omission of its employees under the
theory of respondeat superior, even when those employees are
acting within the scope of their employment. Accordingly,
Judge Willett found that Plaintiff had failed to state a
viable cause of action in Count III and recommended its
dismissal. (Id.) She also found that leave to amend
would be futile because “[n]o additional allegations of
fact can cure this deficiency.” (Id.)
Willett 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. 11 at 6). No objections have been filed
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.”); United States v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003) (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.”).
the Court has reviewed the R&R and agrees with its
findings and recommendations. The Court will, therefore,
accept the R&R and adopt Judge Willett's
recommendations. 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).
. . . .
Plaintiff's Motion to Amend his Complaint
again seeks to amend the Complaint (Doc. 1) that he filed on
October 23, 2017. (Doc. 15). In bringing his motion, however,
Plaintiff has again failed to comply with LRCiv. 15.1(a).
Rule of Civil Practice 15.1(a) requires that a party seeking
to amend a pleading must attach a copy of the proposed
amended pleading as an exhibit to the motion. So that the
Court can compare and ascertain the changes the party is
proposing, the rule also specifies that this proposed amended
pleading “must indicate in what respect it differs from
the pleading which it amends, by bracketing or
striking through the text to be deleted and underlying the
text to be added.” LRCiv 15.1(a) (emphasis
violation of LR Civ. 7.1(b), Plaintiff has handwritten his
Complaint as well as his Motion to Amend his Complaint.
See LRCiv. 7.1(b) (requiring, among other things,
that “[t]he body of all documents shall be
typed double-spaced and shall not exceed 28
lines per page”) (emphasis added). It is therefore
understandable why Plaintiff is having difficulty complying
with LRCiv. 15.1(a). Here again, Plaintiff's attempts to
indicate what proposed changes he has made do not comply with
the dictates of LRCiv. 15.1(a) and, perhaps more importantly,
do not assist this Court in assessing the changes between the
Complaint and the proposed Amended Complaint. For example,
Plaintiff does not indicate his proposed additions by
underlying the text to be added (as required by the rule),
but instead generically describes (often illegibly) the
proposed changes in the margins, sometimes with arrows
pointing toward the text. (See e.g., Doc. 15 at 1
(“ADDED 2 Defendants which were a part of the natural
course of events”); 2 (“Provided a better
explanation w/ references [illegible] event changed”),
6 (“ADDED THE CALL MADE DURING STOP”), 6
(“Easier to understand [illegible] Plaintiff's
position to his vehicle [illegible] search”); 7
(“Added [illegible] information [illegible] actions
directed [illegible] police, and [illegible] and names/owner
* Also added attempt to revoke of police this claim, and all
tickets related to the traffic stop were all
dismissed”); 8 (ADDED SHORT DESCRIPT OF EACH
[illegible] TO EVENT”). His indicated deletions are
also often vague and unspecific because they do not clearly
strike through the language that he proposes removing.
Moreover, as with his proposed additions, he frequently
describes his proposed deletions in generic terms. (See
Id. at 8 (“eliminated list type, just used
conversational text for description, as easier, less
paper”); 9 (“Removed respondent superior”
and “changed unconstitutional to unreasonable”)).
Judge Willett explained in her order denying Plaintiffs first
motion to amend (Doc. 14), “Plaintiffs failure to
comply with Local Rule 15.1(a) hinders the Court's
ability to compare the Complaint and Amended
Complaint.” (Doc. 14). Plaintiffs noncompliance again
prevents this Court from conducting a meaningful comparison.
As a result, Plaintiffs Motion to Amend (Doc. 15) again will
be denied without prejudice.
IT IS ORDERED that Magistrate Judge
Willett's R&R (Doc. 11) is accepted
and adopted as the order of this Court.
Count III of Plaintiffs ...