Opinion
Case No. 16-CV-4046-DDC-JPO
06-07-2016
MARJORIE A. CREAMER, Plaintiff, v. DAVE STORTZ, et al., Defendants.
ORDER
On May 18, 2016, Magistrate Judge James P. O'Hara issued a Report and Recommendation (Doc. 5), recommending dismissal of this lawsuit for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Judge O'Hara noted in his Report and Recommendation that plaintiff may serve and file objections to the Report and Recommendation under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, within 14 days after service. Doc. 5 at 13. He also advised plaintiff that failing to make a timely objection to the Report and Recommendation waives any right to appellate review of the proposed findings of fact, conclusions of law, or recommended disposition. See id. (explaining that "[i]f no objections are timely filed, no appellate review will be allowed by any court."). Judge O'Hara ordered the Clerk to send a copy of his Report and Recommendation to plaintiff by regular and certified mail. Id. Plaintiff also received a copy of the Report and Recommendation by email notification to an email address she has registered with the court. See Docket Entry for Doc. 5 (stating that plaintiff received the document "by E-Notification").
Service of the Report and Recommendation was accomplished by "mailing it to [plaintiff's] last known address—in which event service [was] complete upon mailing." Fed. R. Civ. P. 5(b)(2)(C); see also ReVoal v. Brownback, No. 14-4076, 2014 WL 5321093, at *1 (D. Kan. Oct. 16, 2014). That mailing occurred on May 18, 2016, when the Clerk mailed the Report and Recommendation to plaintiff. See Doc. 5. The time for plaintiff to file any objections to the Report and Recommendation thus has expired.
Plaintiff's deadline for responding is extended by three days because service was made by mail under Fed. R. Civ. P. 6(d). Even adding these three additional days to the 14-day response time, the deadline for responding to Judge O'Hara's Report and Recommendation has expired.
To date, plaintiff has filed no objections to the Report and Recommendation, nor has she sought any extension of time to file an objection. Because plaintiff has filed no objection to the Report and Recommendation within the time prescribed, and she has sought no extension of time to file an objection, the Court accepts, adopts, and affirms the Report and Recommendation in its entirety.
IT IS THEREFORE ORDERED that, after reviewing the file de novo, the Report and Recommendation issued by United States Magistrate Judge James P. O'Hara on May 18, 2016 (Doc. 5) is ACCEPTED, ADOPTED and AFFIRMED. The Court dismisses this action without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS SO ORDERED.
Dated this 7th day of June, 2016, at Topeka, Kansas
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge