Opinion
No. CV-17-04794-PHX-DLR (BSB)
10-19-2018
Emmsley Ikaika, Plaintiff, v. Todd Thomas, et al., Defendants.
REPORT AND RECOMMENDATION
This matter is before the Court on its own review. On December 28, 2017, Plaintiff filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 and an application to proceed in forma pauperis. (Docs. 1, 2.) Plaintiff later filed a Second Amended Complaint ("SAC"). (Docs. 15, 16.) On August 3, 2018, the Court screened the SAC and directed Defendant Thomas to answer the SAC. (Doc. 16 at 5.) The Court ordered the United States Marshal Service ("USMS") to serve Defendant Thomas. (Id.) To facilitate service of process, the Court directed Plaintiff to return a completed service packet to the Court within twenty-one days of the August 3, 2018 Order. (Id.)
Plaintiff did not return the completed service packet by the deadline. Instead, he filed a motion to postpone the case until he was released from custody. (Doc. 17.) On September 5, 2018, the Court denied the motion to postpone. (Doc. 18.) However, the Court extended the deadline for Plaintiff to return a completed service packet to September 20, 2018. (Id. at 2.) The Court warned Plaintiff that failure to comply with this deadline may result in dismissal of this action without prejudice for failure to comply with the Court's order. See Fed. R. Civ. P. 41(b). (Id.) The Court stated that, in the alternative, Plaintiff could file a notice of voluntary dismissal. (Id.)
The deadline for responding to the September 5, 2018 Order has passed and Plaintiff has neither submitted a completed service a packet nor otherwise responded to the Court's order. Therefore, the Court recommends that this matter be dismissed for failure to comply with court orders pursuant to Fed. R. Civ. P. 41(b).
Accordingly,
IT IS RECOMMENDED that the Court dismiss this matter without prejudice for failure to comply with court orders pursuant to Fed. R. Civ. P. 41(b).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 19th day of October, 2018.
/s/_________
Bridget S. Bade
United States Magistrate Judge