Turner v. Smith

1 SM — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Michael Aaron Turner, No. CV 22-01827-PHX-DGC 10 Plaintiff, 11 v. ORDER — 12 — Phillip Smith, et al., — 13 — Defendants. — 14 — 15 Plaintiff Michael Aaron Turner, who was previously confined in the Maricopa 16 County Fourth Avenue Jail,1 brought this civil rights action pursuant to 42 U.S.C. § 1983 . 17 Defendant Pascua has filed a Motion to Dismiss pursuant to Federal Rules of Civil 18 Procedure 12(b)(1), (2), and (6). (Doc. 27.) Also before the Court is the Report and 19 Recommendation (R&R) of Magistrate Judge Deborah M. Fine recommending that the 20 Court dismiss this action without prejudice based on Plaintiff’s failure to prosecute and 21 failure to notify the Court of his change of address. (Doc. 29.) 22 The Court will adopt the R&R and dismiss the action without prejudice. The Court 23 will deny Defendant Pascua’s Motion to Dismiss as moot. 24 . . . 25 . . . 26 . . . — 27 — — 28 — 1 Plaintiff has since been released from Maricopa County Sheriff’s Office custody. (See Docs. 21, 26, 30.) 1 I. Background 2 Upon screening Plaintiff’s Complaint (Doc. 1) pursuant to 28 U.S.C. § 1915A(a), 3 the Court determined that Plaintiff stated excessive force claims against Defendants 4 Phoenix Police Officers Smith and Goduto, Phoenix Police Sergeant Mills, Registered 5 Nurse Pascua, and Doctors Tomlinson and Bate. (Doc. 5.) The Court directed Defendants 6 to answer the respective claims against them and dismissed the remaining claims. (Id.) 7 On February 27, 2023, the Court’s February 21, 2023, Scheduling Order (Doc. 15) 8 was returned as undeliverable as to Plaintiff. (Doc. 21.) On March 3, 2023, upon motion 9 by Defendant Goduto (Doc. 23), the Court ordered Plaintiff to show cause as to why this 10 matter should not be dismissed for Plaintiff’s failure to timely file a notice of change of 11 address. (Doc. 24.) That same day, mail sent to Plaintiff from this Court was returned as 12 undeliverable for a second time. (Doc. 26.) On March 20, 2023, the Court issued an Order 13 informing Plaintiff of his rights and obligations to respond to Defendant Pascua’s Motion 14 to Dismiss (Doc. 28), and this Order was returned as undeliverable on March 27, 2023 15 (Doc. 30). 16 To date, Plaintiff has not filed a notice of change of address, nor has Plaintiff shown 17 cause for his failure to file a timely notice of change of address despite being warned about 18 the possibility of dismissal for failure to comply with the Court’s orders. (Doc. 5 at 8–9 19 (warning that failure to file a change of address or comply with the Court’s orders may 20 result in dismissal); Doc. 24 at 4 (warning that failure to file a notice of change of address 21 may result in dismissal).) 22 II. Report and Recommendation 23 This Court “may accept, reject, or modify, in whole or in part, the findings or 24 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). It is “clear that 25 the district judge must review the magistrate judge’s findings and recommendations de 26 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 27 1114, 1121 (9th Cir. 2003) (en banc); accord Schmidt v. Johnstone, 263 F. Supp. 2d 1219 , 28 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review 1 of factual and legal issues is required if objections are made, ‘but not 2 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 3 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 4 [magistrate judge’s] recommendations to which the parties object”). District courts are not 5 required to conduct “any review at all . . . of any issue that is not the subject of 6 an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 7 U.S.C. § 636 (b)(1) (“A judge of the court shall make a de novo determination of those 8 portions of the [R&R] to which objection is made.”). 9 On March 28, 2023, the Magistrate Judge recommended dismissing this action 10 without prejudice due to Plaintiff’s failure to prosecute and failure to notify the Court of 11 his change of address. (Doc. 29.) Neither party filed objections to the R&R. The Court is 12 therefore not obligated to review the R&R. See United States v. Reyna-Tapia, 328 F.3d 13 1114, 1121 (9th Cir. 2003) (en banc); Fed. R. Civ. P. 72(b)(3) (“[t]he district judge must 14 determine de novo any part of the magistrate judge’s disposition that has been properly 15 objected to”). Even so, the Court has reviewed Judge Fine’s R&R and incorporates and 16 adopts it. Accordingly, the action is dismissed without prejudice for failure to prosecute 17 and failure to comply with the Court’s orders. See Ferdik v. Bonzelet, 963 F.2d 1258 , 18 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with 19 any order of the Court). 20 IT IS ORDERED: 21 (1) The Report and Recommendation (Doc. 29) is adopted, and the action is 22 dismissed without prejudice for failure to prosecute and failure to comply with the 23 Court’s orders. 24 (2) Defendant Pascua’s Motion to Dismiss (Doc. 27) is denied as moot. 25 . . . 26 . . . 27 . . . 28 . . . 1 (3) The Clerk of Court shall enter judgment accordingly and terminate the 2| action. 3 Dated this 12th day of April, 2023. — 4 — aul 6 Cou 6 aw pHl 7 David G. Campbell Senior United States District Judge — 9 — — 10 — — 11 — — 12 — — 13 — — 14 — — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —