Barrera-Montes v. Arpaio

Full title: Cesar Barrera-Montes, Plaintiff, v. Joseph Arpaio, et al., Defendants

Court: United States District Court, D. Arizona

Date published: Jul 25, 2006

No. CV-05-3768-PHX-SMM (GEE) (D. Ariz. Jul. 25, 2006)

Opinion

No. CV-05-3768-PHX-SMM (GEE).

July 25, 2006

ORDER

STEPHEN McNAMEE, Chief District Judge

On June 15, 2006, Magistrate Judge Glenda E. Edmonds filed a Report and Recommendation, advising this Court that Plaintiff's Complaint and this action should be dismissed without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, for failure to complete service of the Summons and Complaint on the Defendants within 120 days of the filing date of the complaint or within 60 days of the filing of the order. (Dkt. 6.) To date, Plaintiff has not filed objections to Judge Edmonds's Report and Recommendation.

STANDARD OF REVIEW

When reviewing a Magistrate Judge's Report and Recommendation, this Court must "make a de novo determination of those portions of the report . . . to which objection is made," and "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)(1)(C); see also Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

By failing to object to a Report and Recommendation, a party waives his right to challenge the Magistrate's factual findings, but not necessarily the Magistrate's legal conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998) (failure to object to Magistrate's legal conclusion "is a factor to be weighed in considering the propriety of finding waiver of an issue on appeal"); Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991) (citing McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980)).

DISCUSSION

Having reviewed the legal conclusions of the Report and Recommendation of the Magistrate Judge, and no objections having been made by Plaintiff thereto, the Court hereby incorporates and adopts the Magistrate Judge's Report and Recommendation.

CONCLUSION

For the reasons set forth,

IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation of Magistrate Judge Glenda E. Edmonds. (Dkt. 6.)

IT IS FURTHER ORDERED that Plaintiff's Complaint and this action are DISMISSED WITHOUT PREJUDICE. The Clerk of Court shall terminate this action accordingly.

IT IS FURTHER ORDERED that the Clerk of the Court shall send a copy of this Order to all parties as well as to Magistrate Judge Glenda E. Edmonds.