Opinion
2:23-cv-00630-CDS-BNW
07-21-2023
Francisco Arcibal, Plaintiff v. Natasha Koch, et al., Defendants
ORDER OVERRULING OBJECTION TO REPORT AND RECOMMENDATION (R&R), ADOPTING R&R, AND DISMISSING CASE
[ECF NOS. 8, 10]
CRISTINA D. SILVA, UNITED STATES DISTRICT JUDGE
Pro se plaintiff Francisco Arcibal objects to the magistrate judge's recommendation that I dismiss this action. ECF No. 8. For the reasons set forth herein, I overrule Arcibal's objection and adopt the R&R in full. I also instruct the Clerk of Court to close this case.
This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). Further, 28 U.S.C. § 636(b)(1) provides that if a party makes a timely objection to a magistrate judge's recommendation, then this court is required to “make a de novo determination of those portions of the [report and recommendation] to which objection is made.” See also Fed. R. Civ. Pro. 72(b)(3); see also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (discussing the Ninth Circuit's view that district courts are not required to review “any issue that is not the subject of an objection”).
Arcibal timely objected on July 17, 2023. ECF No. 10. But his objection does not address the reason that Magistrate Judge Weksler recommends that I dismiss this case, which is Arcibal's failure to file an amended complaint curing the deficiencies identified in her screening order. See ECF No. 8 (“[T]he Court granted Plaintiff leave to file an amended complaint no later than June 1, 2023.”). Liberally construed, Arcibal's objection addresses the initial screening order issued by the magistrate judge. See generally ECF No. 10. Objections to a magistrate judge's recommendation that do nothing more than state a disagreement with the suggested resolution-or simply summarize what has been presented before-are not objections as that term is used in this context. 28 U.S.C. § 636(b)(1); see also United States v. Brooks, 2022 WL 1184368 (W.D. N.C. Apr. 21, 2022). Arcibal failed to comply with the court's deadline to file an amended complaint, nor did he explain why he did not comply or seek additional time to do so. Further, he failed to demonstrate that the magistrate judge's factual findings were clearly erroneous or contrary to the law. As a result, I overrule Arcibal's objection, adopt the R&R in its entirety, and dismiss this action.
A document filed pro se must “be liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
I note that the defendants were not served in this case, so I did not need to wait for a response to the objection before ruling on it.
Conclusion
IT IS THEREFORE ORDERED that Arcibal's objection [ECF No. 10] is OVERRULED.
IT IS FURTHER ORDERED that Magistrate Judge Weksler's Report and Recommendation [ECF No. 8] is ADOPTED IN ITS ENTIRETY. This action is dismissed without prejudice. And the Clerk of Court is directed to CLOSE THIS CASE.