Opinion
CV-23-01362-PHX-DJH
02-14-2024
Daniel Davenport, Petitioner, v. Unknown Birkholz, Respondent.
ORDER
DIANE J. HUMETEWA UNITED STATES DISTRICT JUDGE
This matter is before the Court on Daniel Davenport's (“Petitioner”) pro se Petition for Writ of Habeas Corpus by a Person in Federal Custody (the “Petition”) pursuant to 28 U.S.C. § 2241 (Doc. 1), and the Report and Recommendation (“R&R”) (Doc. 14) issued by United States Magistrate Judge Deborah M. Fine on December 27, 2023. The R&R recommends that Bryan Hudson, Interim Warden, Federal Correctional Institution in Phoenix, Arizona (“FCI Phoenix”) be substituted as Respondent in this case. (Doc. 14 at 13). It also recommends the dismissal of the Petition. (Id.)
The R&R also advised the parties that they had fourteen days to file objections and that the failure to timely do so “may result in the acceptance of the Report and Recommendation by the district court without further review.” (Id.) Petitioner has not filed an objection and the time to do so has expired. Respondents have also not filed an objection. Absent any objections, the Court is not required to review the findings and recommendations in the R&R. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (noting that the relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1), “does not on its face require any review at all . . . of any issue that is not the subject of an objection.”); Reyna-Tapia, 328 F.3d at 1121 (same); Fed.R.Civ.P. 72(b)(3) (“The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.”).
Judge Fine also expressly told the parties that her “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.” (Doc. 14 at 13). On January 10, 2024, Plaintiff nonetheless prematurely filed a Notice of Appeal (Doc. 15).
Nonetheless, the Court has reviewed Judge Fine's thorough R&R and agrees with its findings and recommendations. The Court will, therefore, accept the R&R, order substitution of Bryan Hudson, Interim Warden, Federal Correctional Institution in Phoenix, Arizona (“FCI Phoenix”) as Respondent and dismiss the Petition. See 28 U.S.C. § 636(b)(1) (“A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.”); Fed.R.Civ.P. 72(b)(3) (same).
Accordingly, IT IS ORDERED that the R&R (Doc. 14) is accepted and adopted as the Order of this Court.
IT IS FURTHER ORDERED that Bryan Hudson, Interim Warden, Federal Correctional Institution in Phoenix, Arizona (“FCI Phoenix”) shall be substituted as Respondent in this case. The Clerk of Court is directed to update the docket accordingly.
IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) is denied. The Clerk of Court shall terminate this action and enter judgment accordingly.