Button v. Thornell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Matthew Ryan Button, aka King Blue Sincere
Plaintiff,
v.
Ryan Thornell, et al.,
Defendants.
No. CV-24-00232-PHX-ROS
ORDER
Before the Court is Magistrate Judge Alison S. Bachus’s Report and
Recommendation (“R&R”) recommending dismissal of Plaintiff’s First Amended
Complaint for failure to serve Defendant Ornealas and failure to comply with the Court’s
Orders. (Doc. 22.) Neither party filed objections to the R&R. The Court will accept and
adopt the R&R as follows.
I. BACKGROUND
On February 2, 2024, Plaintiff Matthew Ryan Button, aka King Blue Sincere, filed
a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) The Court dismissed
the Complaint with leave to amend on July 29, 2024, for failure to state a claim. (Doc. 6.)
Plaintiff filed his First Amended Complaint (“FAC”) on August 16, 2024, (Doc. 15), and
thereafter filed a Motion for Default Judgment on January 1, 2025, (Doc. 18), without filing
proof of service on Defendants. On May 22, 2025, the Court dismissed all claims and
Defendants except for Counts Two and Four alleging claims of Eighth Amendment sexual
harassment and First Amendment retaliation as to Defendant Ornealas. (Doc. 19.) The
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Court also ordered Plaintiff to effect service on Defendant Ornealas, or obtain a waiver of
service, within 60 days. (Id. at 19.) On August 4, 2025, the Court issued an Order to Show
Cause for failure to serve and comply with the Court’s Order. (Doc. 21.) Plaintiff failed to
respond to the Order to Show Cause, so on August 29, 2025, the Magistrate Judge issued
an R&R recommending dismissal of the FAC for failure to serve Defendant Ornealas,
failure to comply with court orders, and failure to prosecute his case. (Doc. 22.) As of the
date of this Order, Plaintiff has not filed proof of service or responded to the Order to Show
Cause, and no objections to the R&R have been filed.
II. LEGAL STANDARD
A district judge “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). The district court
must review de novo the portions to which an objection is made. Id. When no objection is
made, the district court need only review de novo a magistrate judge’s conclusions of law.
See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (citing Turner v. Duncan, 158
F.3d 449, 455 (9th Cir. 1998)).
III. REPORT AND RECOMMENDATION
In the R&R, Magistrate Judge Bachus recommended the FAC be dismissed because
there is no good cause to excuse Plaintiff’s failure to serve Defendant Ornealas:
There is no indication from the docket that Defendant Ornealas has actual
notice of this action. At this juncture the matter has been pending over a year
and the Court has nothing before it that would indicate service is
forthcoming. . . . In recommending dismissal for lack of service, undersigned
recognizes Plaintiff’s incarcerated status and that public policy favors
resolution on the merits. However, Plaintiff has failed to make any effort to
show good cause, and the time for service passed months ago.
(Doc. 22 at 3.)
Additionally, though the Order to Show Cause was returned as undeliverable,
Plaintiff was previously warned that failure to notify the Court of his address change could
result in dismissal. (Doc. 13 at 6.) The Magistrate Judge further noted that it appears “from
the record Plaintiff understood [this warning] because he has already filed a notice of
change in address previously in this case.” (Doc. 22 at 4.)
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Lastly, the Magistrate Judge considered the Ferdik factors, see Ferdick v. Bonzelet,
963 F.2d 1258, 1260 (1992), in recommending dismissal for failure to comply with court
orders under Rule 41(b) of the Federal Rules of Civil Procedure:
While the Court recognizes public policy favoring disposition of matters on
their merits, Plaintiff has failed to comply with the Court’s order, and the
Court must efficiently manage its caseload. The Court further acknowledges
the public’s interest in expeditious resolution of litigation. Defendant
Ornealas has not been served; continued delay may prejudice him . . . . The
Court has considered the availability of less drastic alternatives, but Plaintiff
is not responsive to the Order to Show Cause and is not prosecuting his case.
(Doc. 22 at 4.)
As explained in the R&R, Plaintiff has failed to timely serve Defendant Ornealas,
failed to comply with multiple Orders of the Court, and failed to prosecute his case. The
Court finds the R&R is thorough and well-reasoned, without any clear error of law or fact.
See United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989). Pursuant to 28 U.S.C.
§ 636(b)(1), the Court accepts and adopts the R&R as the opinion of the Court. For the
reasons stated in the R&R, the Court dismisses the FAC without prejudice.
Accordingly,
IT IS ORDERED the Report and Recommendation (Doc. 22) is adopted as the
opinion of the Court.
IT IS FURTHER ORDERED the First Amended Complaint (Doc. 15) is
DISMISSED. The Clerk of Court is directed to enter judgment in favor of Defendants and
close this case.
Dated this 25th day of March, 2026.
Honorable Roslyn O. Silver
Senior United States District Judge
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