Opinion
Civil Action No. 11-cv-00644-WYD-KMT
03-09-2012
WYATT T. HANDY JR., Plaintiff, v. DR. COHEN, Individual and Official Capacity; ELAINE MEYER, Individual and Official Capacity; and DR. R. FISH, Individual and Official Capacity, Defendants.
Chief Judge Wiley Y. Daniel
ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court on Defendant Meyer's Motion to Dismiss [ECF No. 34], filed July 26, 2011, as well as Plaintiff's Motion for Leave to File an Amended Complaint" [ECF No. 37], filed Aug. 15, 2011. This matter was assigned to United States Magistrate Judge Kathleen M. Tafoya for a recommendation by Order on Plaintiff's Motion for Reassignment dated June 6, 2011 [ECF No. 19]. Magistrate Judge Tafoya issued a Recommendation on December 30, 2011 [ECF No. 48]. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), D.C.COLO.LR. 72.1.
Magistrate Judge Tafoya recommends that Defendant's Motion to Dismiss be granted and that Plaintiff's Motion to Amend be denied. Magistrate Judge Tafoya finds that Plaintiff has failed to state a claim upon which relief can be granted and that all of Plaintiff's proposed amendments would be futile because the complaint, even as amended, would be subject to dismissal.
Magistrate Judge Tafoya advised the parties that written objections were due within fourteen (14) days after service of a copy of the Recommendation. (Recommendation at 26.) Despite this advisement, no objections were filed to the 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 on the face of the record. I find that Magistrate Judge Tafoya's Recommendation is thorough, well-reasoned and sound. I agree with Magistrate Judge Tafoya that Plaintiff's claims against the Defendants should be dismissed and that the Plaintiff should not be given leave to amend. Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Tafoya [ECF No. 48] is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Defendant Meyer's Motion to Dismiss [ECF No. 34], filed July 26, 2011, is GRANTED, and that Plaintiff's Motion for Leave to File an Amended Complaint" [ECF No. 37], filed Aug. 15, 2011, is DENIED. It is
FURTHER ORDERED that this action is DISMISSED in its entirety.
BY THE COURT:
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Wiley Y. Daniel
Chief United States District Judge