United States District Court, D. Arizona
Donald B. Sawyer, Plaintiff,
Arizona Department of Corrections, et al., Defendants.
Honorable Diane J. Humetewa, United States District Judge.
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.)
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.) . . . .
Reports and Recommendations
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).
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.
Plaintiff's Motion to Dismiss
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.
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
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).
(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 ...