Opinion
Civil Action No. 17-cv-03068-CMA-NYW
01-09-2019
SHANI NURANT SHEIKH ABRAR, Plaintiff, v. UNITED STATES OF AMERICA, JOE MOOREHEAD, Warden, JASON GUNTHER, S.O.E., and COZZA-RHODES, Warden, Defendants.
ORDER ADOPTING NOVEMBER 20, 2018 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the November 20, 2018 Recommendation (Doc. # 77) by United States Magistrate Judge Nina Y. Wang that Defendants' Motions to Dismiss under Fed. R. Civ. P. 12(b)(6) (Doc. ## 37, 49, 56) should be granted. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
The Recommendation advised the parties that specific written objections were due within fourteen (14) days of being served with a copy of the Recommendation. (Doc. # 77 at 15.) Accordingly, objections to the Recommendation were due on December 4, 2018. However, Plaintiff did not file a timely objection. "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 Court notes that the Magistrate Judge and this Court struck various filings submitted by Tony E. Powell after previously warning Mr. Powell that "because he is not Mr. Abrar's lawyer, he cannot represent Mr. Abrar in this matter or make [or] sign motions on his behalf." (Doc. # 80.) The Court also notes that Mr. Powell and Mr. Abrar filed what appears to be an objection to the Magistrate Judge's Recommendation on January 3, 2019. (Doc. # 83.) That objection is overruled because it is not timely.
The Court has reviewed all relevant pleadings concerning the underlying claim and the Recommendation. Based on this review, the Court concludes that Magistrate Judge Wang's thorough and comprehensive analyses and recommendations are correct and that "there is no clear error on the face of the record." Fed. R. Civ. P. 72 Advisory Committee's Note. Therefore, the Court ADOPTS the Recommendation of Magistrate Judge Wang as the findings and conclusions of this Court.
Accordingly, it is ORDERED that the Recommendation of the United States Magistrate Judge (Doc. # 77) is AFFIRMED and ADOPTED. It is
FURTHER ORDERED that Defendants' motions to dismiss (Doc. ## 37, 49, 56) are GRANTED. With respect to the individual defendants, Moorhead, Gunther, and Cozza-Rhodes, Plaintiff's claims are dismissed without prejudice because the defendants are entitled to qualified immunity for the reasons stated in the Recommendation. With respect to Defendant United States of America, Plaintiff's claim is dismissed without prejudice and Plaintiff shall have 30 days from the date of this Order to amend his pleading as detailed in the Recommendation. Should Plaintiff fail to amend his complaint within 30 days, the claim will be dismissed with prejudice and the case will be closed. It is
FURTHER ORDERED that Plaintiff's Objection (Doc. #83) is overruled as an untimely objection.
DATED: January 9, 2019
BY THE COURT:
/s/_________
CHRISTINE M. ARGUELLO
United States District Judge