Opinion
Civil Action 21-cv-01763-CMA-NYW
02-23-2022
JACOB D. OAKLEY, Plaintiff, v. DEAN WILLIAMS, INMATE BANKING, OFFENDER ACCOUNTS, and CDOC ASSIGNED CONTROLER OF THE STATE, Defendants.
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO, JUDGE
This matter is before the Court on the Recommendation of United States Magistrate Judge Nina Y. Wang (Doc. # 30). Judge Wang recommends granting Defendants' Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Doc. # 18) and dismissing Plaintiff's claims for failure to state a claim for which relief can be granted. The Court affirms and adopts the Recommendation for the following reasons.
“[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”)). 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. # 30 at 37 n.18.) Plaintiff has not filed any objection.
The Court also notes that Plaintiff did not file a Response to Defendants' Motion to Dismiss. See (Doc. # 30 at 5.) Plaintiff has not filed anything in this case since October 14, 2021. (Doc. # 24).
Having reviewed the Recommendation, the relevant portions of the record, and applicable 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 Nina Y. Wang (Doc. # 30) is AFFIRMED and ADOPTED as an order of this Court;
• Defendants' Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Doc. # 18) is GRANTED;
• Plaintiff's Sherman Act claim is DISMISSED WITH PREJUDICE as to all Defendants; and
• Plaintiff's procedural due process claim and substantive due process claim are DISMISSED WITHOUT PREJUDICE as to all Defendants. Plaintiff shall
have 30 days to file a motion for leave to amend with a proposed amended pleading. If Plaintiff fails to do so, the case will be dismissed with prejudice.
The Court agrees with Judge Wang that any attempt at amendment of Plaintiff's Sherman Act claim would be futile and, therefore, dismissal with prejudice is appropriate. See Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997).