Opinion
Civil Action No. 11-cv-02823-CMA-KMT
08-28-2012
DALE P. ARMELIN, Plaintiff, v. PATRICK R. DONAHOE, Postmaster General, and UNITED STATES POSTAL SERVICES, Defendants.
Judge Christine M. Arguello
ORDER ADOPTING AND AFFIRMING AUGUST 8, 2012
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case was referred to United States Magistrate Judge Kathleen M. Tafoya, pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. On August 8, 2012, the Magistrate Judge issued a Recommendation that Defendant's Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Doc. # 15) be granted and this case dismissed under Fed. R. Civ. P. 12(b)(6). (Doc. # 29.)
On August 20, 2012, Plaintiff, proceeding pro se, filed timely objections to the Recommendation. (Doc. # 30.) This Court has conducted a de novo review of this matter, including carefully reviewing all relevant pleadings, the Recommendation, and Plaintiff's Objections to the Recommendation. As the Magistrate Judge correctly noted, Plaintiff admitted that his Complaint was not timely filed. (Doc. # 26 at 1.) For the reasons discussed in the Magistrate Judge's Recommendation (Doc. # 29 at 6), the Court agrees that equitable tolling is not appropriate in this case. In his Objections, Plaintiff fails to raise any new issues of law or fact that would warrant a different conclusion. Thus, Plaintiff's complaint must be dismissed as untimely.
Because Plaintiff is proceeding pro se, the Court "review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys." Trackwell v. U.S. Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)).
Based on this de novo review, this Court concludes that the Magistrate Judge Tafoya's Recommendation is correct. Therefore, Plaintiff's Objections are OVERRULED and the Court hereby ADOPTS the Recommendation of the United States Magistrate Judge as the findings and conclusions of this Court.
Accordingly, it is ORDERED THAT Defendant's "Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)" (Doc. # 15) is GRANTED.
It is FURTHER ORDERED that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith, and thus, such an appeal may not be taken in forma pauperis.
In light of the above, IT IS FURTHER ORDERED that this case is DISMISSED in its entirety.
BY THE COURT:
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CHRISTINE M. ARGUELLO
United States District Judge