Opinion
Civil Action No. 04-D-2300 (PAC).
November 1, 2005
ORDER ADOPTING AND AFFIRMING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court in connection with Defendant's Motion for Summary Judgment filed July 15, 2005. This motion was referred to Magistrate Judge Coan for a recommendation. A Recommendation of United States Magistrate Judge was issued on September 30, 2005, which is incorporated herein by reference.See 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b).
Magistrate Judge Coan recommends therein that Defendant's Motion for Summary Judgment be granted as to all claims in Plaintiff's complaint. Recommendation at 1-2. She first notes that while Plaintiff was ordered to respond to Defendant's motion, Plaintiff failed to file a response. Id. at 1. Further, Plaintiff failed to appear at a hearing on August 23, 2005, and mail from the Court was returned as undeliverable on July 27, and August 3, 2005. Id. at 2.
As to the merits of the motion, Magistrate Judge Coan recommends that summary judgment be granted on Plaintiff's claims for damages arising out of his alleged false arrest on the basis that such claims are barred under Heck v. Humphrey, 512 U.S. 477 (1994). Id. at 4-5. It is also recommended that summary judgment be granted on grounds of qualified immunity. Id. at 5-6. Magistrate Judge Coan finds on that issue that Plaintiff "has made no attempt to meet his burden of showing that the conduct he complains of in his complaint violated constitutional or statutory rights." Id. at 5.
Magistrate Judge Coan advised the parties that written objections were due within ten (10) days after being served with a copy of the Recommendation. Id. at 6. Despite this advisement, no objections were filed by any party to the Magistrate Judge's Recommendation.
No objections having been filed, I am vested with discretion to review the Recommendation "under any standard [I] deem appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also 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"). Nonetheless, though not required to do so, I review the Recommendation to "satisfy [my]self that there is no clear error on the face of the record." See Fed.R.Civ.P. 72(b) Advisory Committee Notes.
Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard of review, FED. R. CIV. P. 72(a), which in turn is less than a de novo review, FED. R. CIV. P. 72(b).
Having reviewed the Recommendation, I am satisfied that there is no clear error. I agree with Magistrate Judge Coan that Defendant is entitled to qualified immunity and that Plaintiff's claims arising out of his alleged false arrest are barred by Heck v. Humphrey. Plaintiff has made no attempt to show to the contrary, through either a response to the summary judgment motion or objections to the Recommendation. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge dated September 30, 2005, is AFFIRMED and ADOPTED. In accordance therewith, it is
ORDERED that Defendant's Motion for Summary Judgment filed July 15, 2005, is GRANTED. Judgment shall be entered in favor of Defendant on all claims in this action.