Daniels v. BMF V AZ Saddle LLC

7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA Naomi Daniels, ) ) 11 Plaintiff, ) ) No. CIV 23-070-TUC-CKJ(EJM) vs. ) ) ORDER BMF V AZ Saddle, LLC, ) ) 14 Defendant. ) ) On May 22, 2023, Magistrate Judge Eric J. Marakovich issued a Report and Recommendation (Doc. 21) in which he recommends the Court grant the Application to Proceed in District Court Without Prepaying of Fees or Costs ("Application") (Doc. 2) filed by Plaintiff Naomi Daniels ("Daniels"), dismiss Daniels' Complaint for failure to state a claim and granting leave to file a first amended complaint consistent with the Report and Recommendation, and deny Daniels' Request: Cease and Detist [sic] ("Request") (Doc. 5) without prejudice.

The Report and Recommendation advised the parties that, pursuant to 28 U.S.C. § 23 636(b) and Fed.R.Civ.P. 72(b)(2), any party may serve and file written objections within fourteen (14) days after being served with a copy of the Report and Recommendation. No objections have been filed within the time provided by 28 U.S.C. § 636(b)(1).

The standard of review that is applied to a magistrate judge’s report and recommendation is dependent upon whether a party files objections – the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must “determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1).

6 Nonetheless, “while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.” Thomas, 474 U.S. at 154.

9 The Court has reviewed and considered the Application, the Complaint, the Request and the Report and Recommendation. After an independent review, the Court finds it is appropriate to adopt the Report and Recommendation. Additionally, the Court finds it appropriate to advise Daniels the Court's website provides forms of documents. See https://www.azd.uscourts.gov/forms; https://www.azd.uscourts.gov/forms-self-represented- litigants.

15 Accordingly, IT IS ORDERED: 16 1. The Report and Recommendation (Doc. 21) is ADOPTED.

17 2. Daniels' Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2) is GRANTED; 19 3. Daniels' Complaint (Doc. 1) is DISMISSED for failure to state a claim upon which relief may be granted; 21 4. Daniels may file an Amended Complaint, consistent with the Report and Recommendation, within 30 days of the date of this Order. Any Amended Complaint must be retyped or rewritten in its entirety and may not incorporate any part of the prior complaint or subsequent pleadings by reference. All causes of action alleged in the original complaint which are not alleged in any Amended Complaint will be waived. Any Amended Complaint submitted by Daniels shall be clearly designated as an Amended Complaint on the face of || the document. Any Amended Complaint shall comply with the requirements of Fed.R.Civ.P. || 8(a), 10(a), and 11(a).

3 5. The Clerk of the Court is DIRECTED to enter a judgment of dismissal, without || prejudice, without further notice to Daniels, if Daniels fails to file an Amended Complaint || within thirty (30) days of the filing date of this Order.

6 6. Daniels' Request: Cease and Detist [sic] (Doc. 5) is DENIED WITHOUT || PREJUDICE.

8 7. This matter is referred to Magistrate Judge Eric J. Markovich for further || pretrial proceedings and report and recommendation in accordance with the provisions of 28 10] U.S.C. § 636(b)(1) and L.R.Civ.P. 72.1 and 72.2.

11 All future filings in this case shall be designated: 12 CIV-23-070-TUC-CKJ (EJM) 13 DATED this 13th day of June, 2023.

Lat, JO saaneooee 16 Cindy K. Jor§€énso 7 United States District Judge -3-