Opinion
Civil Action 20-cv-01805-CMA-KLM
09-07-2021
TIMOTHY W. KREBS, Plaintiff, v. DEPUTY JUSTIN WILLIAMSON, LO1022, and DEPUTY ZACK ANDERSON, #L17048 Defendants.
ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGU ELLO United States District Judge
This matter is before the Court on the August 12, 2021 Recommendation of United States Magistrate Judge (Doc. # 60), wherein United States Magistrate Judge Kristen L. Mix recommends that this Court grant Defendants' Motion to Dismiss (Doc. # 34). The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
Judge Mix makes the following recommendations: (1) that the Court grant the Motion as to Plaintiff's Eighth and Fourteenth Amendment claims because neither amendment is applicable to the facts and circumstances of this case; (2) that the Court grant Defendant Williamson qualified immunity on Plaintiff's Fourth Amendment claim; and (3) that the Court dismiss Plaintiff's Fourth Amendment claim against Defendant Anderson pursuant to the Heck doctrine. See (Doc. # 60 at 8-9, 10-15, 17-19) (citing Heck v. Humphrey, 512 U.S. 477 (1994)).
The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. (Doc. # 60 at 20.) Despite this advisement, no objection to Magistrate Judge Mix's Recommendation has been filed by any party.
“[T]he district court is accorded considerable discretion with respect to the treatment of unchallenged magistrate reports. In the absence of timely objection, the district court may review a magistrate [judge's] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that “[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”)).
After reviewing the Recommendation of Magistrate Judge Mix, in addition to applicable portions of the record and relevant legal authority, the Court is satisfied that the Recommendation is sound and not clearly erroneous or contrary to law. See Fed. R. Civ. P. 72(a). Accordingly, the Court ORDERS as follows:
• the Recommendation of United States Magistrate Judge (Doc. # 60) is AFFIRMED and ADOPTED as an Order of this Court;
• Defendants' Motion to Dismiss (Doc. # 34) is GRANTED;
• Plaintiff's Eighth and Fourteenth Amendment claims are hereby DISMISSED WITH PREJUDICE;
• Plaintiffs Fourth Amendment claims against Defendants Williamson and Anderson are hereby DISMISSED WITHOUT PREJUDICE. See, e.g., Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is appropriate only “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend”); Graham v. Waters, 805 Fed.Appx. 572, 579 (10th Cir. 2020) (dismissal under Heck doctrine is without prejudice); and
• Plaintiff shall have up to and including October 4, 2021, within which to file an Amended Complaint. Should Plaintiff fail to file an Amended Complaint, the Court will close this case at that time.
Amendment of the complaint with respect to these claims would be futile because neither the Eighth nor the Fourteenth Amendment is applicable to the facts and circumstances of this case, as explained by Judge Mix in the Recommendation. See (Doc. # 60 at 8-9); see also Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir. 2014) (“[W]e have held that the Fourth Amendment, not the Fourteenth, governs excessive force claims arising from the ‘treatment of [an] arrestee detained without a warrant' and ‘prior to any probable cause hearing'”) (citation omitted)).