Merrick 051614 v. Shinn

6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Anthon y James Merrick, ) No. CV-23-00296-PHX-SPL ) ) 10 Plaintiff, ) ORDER vs. ) ) ) David Shinn, et al., ) ) 13 Defendants. ) ) 14 ) 15 Plaintiff Anthony James Merrick filed a Second Amended Complaint pursuant to 42 U.S.C. § 1983 (Doc. 10). The Honorable Michael T. Morrissey, United States Magistrate Judge, issued a Report and Recommendation (“R&R”) (Doc. 36), recommending the Court dismiss Defendant S. McQueen for failure to serve pursuant to Federal Rule of Civil Procedure 4(m).

20 A district judge “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); see also Fed. R. Civ. 22 P. 72(b)(3) (“The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.”).

24 When a party files a timely objection to an R&R, the district judge reviews de novo those portions of the R&R that have been “properly objected to.” Fed. R. Civ. P. 72(b)(3). A proper objection requires specific written objections to the findings and recommendations in the R&R. See United States v. Reyna-Tapia, 328 F.3d 1114, 1118–19 (9th Cir. 2003); 28 U.S.C. § 636(b)(1). It follows that the Court need not conduct any review of portions to which no specific objection has been made. See Reyna-Tapia, 328 F.3d at 1121; see also Thomas v. Arn, 474 U.S. 140, 149 (1985) (discussing the inherent purpose of limited review is judicial economy). Further, a party is not entitled as of right to de novo review of evidence or arguments which are raised for the first time in an objection to the R&R, and the Court’s decision to consider them is discretionary. United States v. Howell, 231 F.3d 6 615, 621–622 (9th Cir. 2000).

7 On September 20, 2023, the Court ordered Plaintiff to show cause why Defendant S. McQueen should not be dismissed for failure to complete service (Doc. 17). On September 29, 2023, Plaintiff filed a response (Doc. 21), which the Court construed as a request for further assistance with service of Defendant S. McQueen (Doc. 22). The Court then instructed Defendants to provide Plaintiff with Defendant S. McQueen’s work location if he was still employed with the Department of Corrections or his last known home address (Doc. 22). Defendants complied on October 5, 2023, providing Defendant S. McQueen’s last known home address, ex parte and under seal, for the sole purpose of facilitating service (Docs. 23, 24). Service was again returned unexecuted, however, on October 25, 2023 (Doc. 26). Between that date and the filing of the R&R forty days later, Plaintiff took no action.

18 In the R&R, the Magistrate Judge recommends Defendant S. McQueen be dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, reasoning that Plaintiff provided no discernable good cause for failure to serve the remaining defendant in this case (Doc. 36 at 3). In response, Plaintiff has filed a Motion for Service by Publication (Doc.

22 37). Plaintiff’s Motion, however, fails to offer any explanation as to why he waited forty days to file such a request. In addition, no specific objection to the R&R and its findings has been filed.

25 The parties did not file objections, which relieves the Court of its obligation to review the R&R. See Reyna-Tapia, 328 F.3d at 1121; Thomas v. Arn, 474 U.S. 140, 149 (1985) (“[Section 636(b)(1)] does not… require any review at all… of any issue that is not the subject of an objection.”); Fed. R. Civ. P. 72(b)(3) (“The district judge must determine | denovo any part of the magistrate judge’s disposition that has been properly objected to.”).

The Court has nonetheless reviewed the R&R and finds that it is well-taken. The Court 3| will thus adopt the R&R in full. See 28 U.S.C. § 636(b)(1) (stating that the district court 4} “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate”); Fed. R. Civ. P. 72(b)(3) (“The district judge may accept, reject, or | modify the recommended disposition; receive further evidence; or return the matter to the | magistrate judge with instructions.”). Accordingly, 8 IT IS ORDERED that Magistrate Judge Michael T. Morrissey’s Report and | Recommendation (Doc. 36) is accepted and adopted by the Court.

10 IT IS FURTHER ORDERED that Defendant S. McQueen is dismissed without | prejudice.

12 IT IS FURTHER ORDERED that the Motion for Service by Publication (Doc.

13 | 37) is denied.

14 Dated this 8th day of January, 2024.

7 United States District kadge