United States District Court, D. Arizona
HONORABLE DAVID C. BURY UNITED STATES DISTRICT JUDGE.
matter was referred to Magistrate Judge Eric J. Markovich,
pursuant to Rules of Practice for the United States District
Court, District of Arizona (Local Rules), Rule (Civil)
72.1(a). He issued a Report and Recommendation (R&R) on
August 17, 2018. (Doc. 34: R&R). He recommends granting
the Defendants' Motion to Dismiss the case as barred by
the statute of limitations. Plaintiff admits the suit is
untimely but asks the Court to apply equitable tolling and
allow the case to go forward. The Court agrees with the
Magistrate Judge that equitable tolling is not warranted and
grants the Motion to Dismiss.
duties of the district court, when reviewing a R&R of a
Magistrate Judge, are set forth in Rule 72 of the Federal
Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The
district 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), 28 U.S.C. §
636(b)(1). When the parties object to a R&R,
“‘[a] judge of the [district] court shall make a
de novo determination of those portions of the [R&R] to
which objection is made.'” Thomas v. Arn,
474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. §
636(b)(1)). When no objections are filed, the district court
does not need to review the R&R de novo. Wang v.
Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005);
United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22
(9th Cir.2003) (en banc).
parties were sent copies of the R&R and instructed they
had 14 days to file written objections. 28 U.S.C. §
636(b), see also, Federal Rule of Criminal Procedure
72 (party objecting to the recommended disposition has
fourteen (14) days to file specific, written objections). To
date, no objections have been filed.
Magistrate Judge considered Plaintiff's arguments for
equitably tolling the two-year statute of limitations period.
He found, and the Court agrees, that the statute of
limitations period is not tolled by his or his attorney's
confusion or mistaken belief that this case should not be
commenced until his criminal prosecution ended. (R&R
(Doc. 34) at 5) (citations omitted). Also, Plaintiff's
mental issues do not warrant equitable tolling. “A bare
assertion of mental health issues without any evidence in
support falls far below the threshold necessary to justify
equitable tolling.” (R&R (Doc 34) at 6 (citing
Johnson v. Lucent Techs., Inc., 653 F.3d 1000, 1010
(9th Cir. 2011) (mental impairment must be so
severe that plaintiff is unable rationally or factually to
understand need to timely file); (further citations omitted).
“'[I]t is insufficient to summarily claim
‘inability to bring an action' . . . The plaintiff
must set forth specific facts-hard evidence-supporting the
conclusion of unsound mind.'” Id. (quoting
Doe v. Roe, 191 Ariz. 313, 326 (1998)).
to 28 U.S.C. § 636(b), this Court makes a de novo
determination as to those portions of the R&R to which
there are objections. 28 U.S.C. § 636(b)(1) ("A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
and recommendations to which objection is made.") To the
extent that no objection has been made, arguments to the
contrary have been waived. McCall v. Andrus, 628
F.2d 1185, 1187 (9th Cir. 1980) (failure to object to
Magistrate's report waives right to do so on appeal);
see also, Advisory Committee Notes to Fed.R.Civ.P.
72 (citing Campbell v. United States Dist. Court,
501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection
is filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the
there are no objections and review is, therefore, waived, the
Court, nevertheless reviews at a minimum, de novo, the
Magistrate Judge's conclusions of law. Robbins v.
Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998)
(conclusions of law by a magistrate judge reviewed de novo);
Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir.
1991) (failure to object standing alone will not ordinarily
waive question of law, but is a factor in considering the
propriety of finding waiver)). The Court finds the R&R to
be thorough and well-reasoned, without any clear error in law
or fact. See United States v. Remsing, 874 F.2d 614,
617-618 (9th Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(A)
(providing for district court to reconsider matters delegated
to magistrate judge when there is clear error or
recommendation is contrary to law)). The Court accepts and
adopts the R&R as the opinion of the Court, pursuant to
28 U.S.C. § 636(b)(1). For the reasons stated in the
R&R, the Court finds that the Plaintiff failed to show
sufficient circumstances exist to warrant equitable tolling
of the two-year statute of limitations.
IS ORDERED that the Report and Recommendation (Doc.
34) is adopted as the opinion of the Court.
IS FURTHER ORDERED that the Motion to Dismiss (Doc.
23) is GRANTED.
IS FURTHER ORDERED that the Clerk of the Court shall
enter Judgment accordingly.
IS FURTHER ORDERED that Plaintiff is proceeding here
in forma pauperis under 42 U.S.C. § 1983. In the event
the Plaintiff files an appeal, the Court finds the appeal is
not taken in good faith because an appeal would be frivolous
as there is no substantial argument to be made contrary to
this Court's determination ...