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WO 

NOT FOR PUBLICATION 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

John Charles Holmes, 

Plaintiff, 

v. 

J. Nielson, et al., 

Defendants. 

No. CV-17-03910-PHX-DJH 

ORDER 

 On February 21, 2018 Magistrate Judge Eileen S. Willett assessed and screened 

pro se Plaintiff John Charles Holmes’ Application for Deferral or Waiver of Court Fees 

or Costs and Consent to Entry of Judgment (“Application”) (Doc. 3) and his Complaint 

(Doc. 1). Judge Willett granted Plaintiff’s Application, but in screening the Complaint 

pursuant to 28 U.S.C. § 1915(e)(2), recommended dismissal of Count III without leave to 

amend. (Doc. 11). Thereafter, on March 6, 2018, Plaintiff sought to amend his 

complaint. (Doc. 12). Judge Willett denied Plaintiff’s motion to amend without 

prejudice because Plaintiff failed to comply with LRCiv. 15.1(a). (Doc. 14). On March 

26, 2018, Plaintiff renewed his request to amend his complaint, claiming his motion now 

complied “with all required rules.” (Doc. 15). An election for district judge jurisdiction 

was then made, and by random draw the case was reassigned to this Court. No response 
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has been filed to the motion to amend and the time to do so has passed. 

I. Discussion 

A. Judge Willett’s R&R – Dismissal of Count III 

 Judge Willett recommends dismissal of Count III in Plaintiff’s Complaint, which 

seeks to impose liability on the City of Mesa through the actions of its employees under 

the legal theory of respondeat superior. (Doc. 11 at 4). As noted by the magistrate judge, 

however, a municipality cannot be liable for the acts or omission of its employees under 

the theory of respondeat superior, even when those employees are acting within the scope 

of their employment. Accordingly, Judge Willett found that Plaintiff had failed to state a 

viable cause of action in Count III and recommended its dismissal. (Id.) She also found 

that leave to amend would be futile because “[n]o additional allegations of fact can cure 

this deficiency.” (Id.) 

 Judge Willett advised the parties that they had fourteen days to file objections and 

that the failure to file timely objections “may result in the acceptance of the Report and 

Recommendation by the District Court without further review.” (Doc. 11 at 6). No 

objections have been filed and the time to do so has expired. 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) (The relevant provision of the Federal 

Magistrates Act, 28 U.S.C. § 636(b)(1)(C), “does not on its face require any review at all 

. . . of any issue that is not the subject of an objection.”); United States v. Reyna-Tapia, 

328 F.3d 1114, 1121 (9th Cir. 2003) (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.”). 

 Nonetheless, the Court has reviewed the R&R and agrees with its findings and 

recommendations. The Court will, therefore, accept the R&R and adopt Judge Willett’s 

recommendations. See 28 U.S.C. § 636(b)(1)(C) (“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). 
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. . . . 

B. Plaintiff’s Motion to Amend his Complaint 

 Plaintiff again seeks to amend the Complaint (Doc. 1) that he filed on 

October 23, 2017. (Doc. 15). In bringing his motion, however, Plaintiff has again failed 

to comply with LRCiv. 15.1(a). 

 Local Rule of Civil Practice 15.1(a) requires that a party seeking to amend a 

pleading must attach a copy of the proposed amended pleading as an exhibit to the 

motion. So that the Court can compare and ascertain the changes the party is proposing, 

the rule also specifies that this proposed amended pleading “must indicate in what respect 

it differs from the pleading which it amends, by bracketing or striking through the text 

to be deleted and underlying the text to be added.” LRCiv 15.1(a) (emphasis added). 

 In violation of LR Civ. 7.1(b), Plaintiff has handwritten his Complaint as well as 

his Motion to Amend his Complaint. See LRCiv. 7.1(b) (requiring, among other things, 

that “[t]he body of all documents shall be typed double-spaced and shall not exceed 28 

lines per page”) (emphasis added). It is therefore understandable why Plaintiff is having 

difficulty complying with LRCiv. 15.1(a). Here again, Plaintiff’s attempts to indicate 

what proposed changes he has made do not comply with the dictates of LRCiv. 15.1(a) 

and, perhaps more importantly, do not assist this Court in assessing the changes between 

the Complaint and the proposed Amended Complaint. For example, Plaintiff does not 

indicate his proposed additions by underlying the text to be added (as required by the 

rule), but instead generically describes (often illegibly) the proposed changes in the 

margins, sometimes with arrows pointing toward the text. (See e.g., Doc. 15 at 1 

(“ADDED 2 Defendants which were a part of the natural course of events”); 2 (“Provided 

a better explanation w/ references [illegible] event changed”), 6 (“ADDED THE CALL 

MADE DURING STOP”), 6 (“Easier to understand [illegible] Plaintiff’s position to his 

vehicle [illegible] search”); 7 (“Added [illegible] information [illegible] actions directed 

[illegible] police, and [illegible] and names/owner * Also added attempt to revoke of 

police this claim, and all tickets related to the traffic stop were all dismissed”); 8 
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(ADDED SHORT DESCRIPT OF EACH [illegible] TO EVENT”). His indicated 

deletions are also often vague and unspecific because they do not clearly strike through 

the language that he proposes removing. Moreover, as with his proposed additions, he 

frequently describes his proposed deletions in generic terms. (See id. at 8 (“eliminated 

list type, just used conversational text for description, as easier, less paper”); 9 

(“Removed respondent superior” and “changed unconstitutional to unreasonable”)). 

 As Judge Willett explained in her order denying Plaintiff’s first motion to amend 

(Doc. 14), “Plaintiff’s failure to comply with Local Rule 15.1(a) hinders the Court’s 

ability to compare the Complaint and Amended Complaint.” (Doc. 14). Plaintiff’s 

noncompliance again prevents this Court from conducting a meaningful comparison. As 

a result, Plaintiff’s Motion to Amend (Doc. 15) again will be denied without prejudice. 

 Accordingly, 

IT IS ORDERED that Magistrate Judge Willett’s R&R (Doc. 11) is accepted and 

adopted as the order of this Court. Count III of Plaintiff’s Complaint (Doc. 1) is 

dismissed with prejudice. 

IT IS FURTHER ORDERED denying without prejudice Plaintiff’s Motion to 

Amend (Doc. 15). 

IT IS FINALLY ORDERED that all future filings, including any motion to 

amend, must be filed in compliance with all Local and Federal Rules, including, but not 

limited to LRCiv. 7.1(b), which requires, among other things, that the “body of all 

documents shall be typed double-spaced and shall not exceed 28 lines per page...” 

Dated this 1st day of May, 2018. 

Honorable Diane J. Humetewa 

United States District Judge