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Sawyer v. Arizona Department of Corrections

United States District Court, D. Arizona

February 21, 2019

Donald B. Sawyer, Plaintiff,
v.
Arizona Department of Corrections, et al., Defendants.

          ORDER

          Honorable Diane J. Humetewa, United States District Judge.

         Plaintiff Donald B. Sawyer, who is currently confined in the Arizona State Prison Complex (ASPC)-Lewis, filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. (Doc. 13.) Pending before the Court is Plaintiff's Motion to Dismiss this case without prejudice to refiling at a later date. (Doc. 57.) Also before the Court are Magistrate Judge Bridge S. Bade's Reports and Recommendations (R&Rs) that Plaintiff's claims against Defendants Mendes, Braveheart, Monteveros, Putnam, Horne, McGee and Reese be dismissed without prejudice for failure to serve. (Docs. 47, 49.)

         The Court will adopt the R&Rs and dismiss Defendants Mendes, Braveheart, Monteveros, Putnam, Horne, McGee and Reese without prejudice. The Court will also grant Plaintiff's Motion to Dismiss and dismiss this action without prejudice. The Court will deny as moot the remaining Defendants' Motion for an Order for Plaintiff to Appear at Deposition. (Doc. 56.) . . . .

         I. Reports and Recommendations

         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). It is “clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the [magistrate judge's] recommendations to which the parties object”). District courts are not required to conduct “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added).

         No party has filed an objection to the R&Rs. The Court is therefore not obligated to review the R&Rs. See Reyna-Tapia, 328 F.3d at 1121; Fed.R.Civ.P. 72(b)(3) (“[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to”). Nevertheless, the Court has reviewed Judge Bade's R&Rs and incorporates and adopts them. Accordingly, Defendants Mendes, Braveheart, Monteveros, Putnam, Horne, McGee and Reese are dismissed from this action without prejudice for failure to serve.

         II. Plaintiff's Motion to Dismiss

         On January 11, 2019, Plaintiff filed the pending Motion to Dismiss. (Doc. 57.) Defendants responded that they do not object to dismissal of this matter without prejudice. (Doc. 58.)

         On January 22, 2019, the Court, in an abundance of caution, ordered Plaintiff to file, within 14 days, either a notice of intent to proceed with his Motion to Dismiss or a notice of withdrawal of his Motion to Dismiss. (Doc. 59.) Plaintiff did not respond to the Order and the time for doing so has expired.

         Federal Rule of Civil Procedure 41(a)(2) provides that if the opposing party has served either an answer or a motion for summary judgment, “an action may be dismissed at the plaintiffs request only by court order, on terms that the court considers proper.” “A district court should grant a motion for voluntary dismissal under Rule 41(a)(2) unless a defendant can show that it will suffer some plain legal prejudice as a result.” Smith v. Lenches, 263 F.3d 972, 975 (9th Cir. 2001). Here, Defendants do not object to dismissal of this action without prejudice. Accordingly, the Court will grant Plaintiffs motion and dismiss the action without prejudice. See Fed. R. Civ. P. 41(a)(2) (unless otherwise ordered, dismissal is without prejudice).

         IT IS ORDERED:

(1) The Reports and Recommendations (Docs. 47, 49) are adopted, and Defendants Mendes, Braveheart, Monteveros, Putnam, Horne, McGee and Reese are dismissed from this action without prejudice for failure to serve.
(2) The reference to the Magistrate Judge is withdrawn as to Plaintiffs Motion to Dismiss (Doc. 57) and the Motion is granted. The First Amended Complaint and this action are dismissed without prejudice. The ...

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