Opinion
No. CV-18-02294-PHX-BSB
09-05-2018
Timothy Bernard Sapp, Plaintiff, v. United States Department of Veterans Affairs, Defendant.
REPORT AND RECOMMENDATION
This matter is before the Court on its own review. On August 17, 2018, the Court granted Plaintiff in forma pauperis status and screened the Complaint pursuant to 28 U.S.C. § 1915(e)(2). (Doc. 10.) The Court identified deficiencies in the Complaint and ordered Plaintiff to file an amended complaint that cured those deficiencies within fourteen days of the Court's order. (Id. at 2-4.) The Court warned Plaintiff that if he did not file an amended complaint as ordered, the assigned magistrate judge would "issue a Report and Recommendation recommending that the Complaint be dismissed pursuant to 28 U.S.C. § 1915(e) and Rule 41(b)" of the Federal Rules of Civil Procedure. (Id. at 4.) Plaintiff has not filed an amended complaint and the time to do so has passed.
Because no defendant has been served or consented to magistrate judge jurisdiction, the assigned magistrate judge lacks jurisdiction to dismiss the Complaint and therefore issues this Report and Recommendation to a United States District Judge. See Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017) (holding that the absence of consent from unserved defendants deprived the magistrate judge of jurisdiction to dismiss the complaint); see also 28 U.S.C. § 636(c).
Accordingly,
IT IS RECOMMENDED that the Court dismiss the Complaint without prejudice pursuant to 28 U.S.C. § 1915(e) and Rule 41(b). The Clerk of Court shall refer this Report and Recommendation to the Honorable Stephen M. McNamee in accordance with General Order 11-03.
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. 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).
Dated this 5th day of September, 2018.
/s/_________
Bridget S. Bade
United States Magistrate Judge