Opinion
Civil Action No. 11-cv-00708-WYD-KMT
10-31-2011
WYATT T. HANDY JR., Plaintiff, v. OFF. SEAN PASCAL, Individual and Official Capacity, and DREW BONSALL, Individual 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 Sean Pascal's "Joint Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (6) of Defendant Sean Pascal, in his Individual Capacity, and Sean Pascal in His Offical [sic] Capacity, with Authority" (ECF No. 28), filed June 15, 2011. The motion was referred to Magistrate Judge Kathleen M. Tafoya for a Recommendation by Order of Reference dated April 22, 2011. Magistrate Judge Tafoya issued a Recommendation on August 29, 2011. Specifically, Magistrate Judge Tafoya recommends that the pending motion to dismiss be granted as to all claims asserted against Defendant Pascal except Plaintiff's claim for malicious prosecution asserted pursuant to 42 U.S.C. § 1983. Magistrate Judge Tafoya recommends permitting Plaintiff to file a motion for leave to amend his Complaint to cure the deficiencies as to the malicious prosecution claim asserted against Defendant Pascal only. (ECF No. 69, Recommendation at 22-23.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b).
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 23-24.) 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.
I note that at some point during the service of the Recommendation on the Plaintiff, Plaintiff was released from custody. On September 22, 2011, Plaintiff notified the Court of his address change. Thus, on September 26, 2011, the Clerk of the Court issued a Certificate of Service by Mail of the Recommendation at Plaintiff's new address. Accordingly, I calculated the 14-day period for filing written objections to the Recommendation from the date the Certificate of Service was issued, which was October 13, 2011. No objections have been filed to date. I further note that it is clear that Plaintiff received the Recommendation as it is referenced in Plaintiff's recent motion for an extension of time to Amend his Complaint, filed October 11, 2011.
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).
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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 the pending motion should be granted as to all claims asserted against Defendant Pascal except Plaintiff's claim for malicious prosecution for the reasons stated in both the Recommendation and this Order.
Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Tafoya (ECF No. 69) is AFFIRMED and ADOPTED.
In accordance therewith, it is
FURTHER ORDERED that Defendant Sean Pascal's "Joint Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and (6) of Defendant Sean Pascal, in his Individual Capacity, and Sean Pascal in His Offical [sic] Capacity, with Authority" (ECF No. 28) is GRANTED to the extent that Plaintiff's claims are dismissed against Defendant Pascal except Plaintiff's claim for malicious prosecution. Plaintiff is permitted to file a motion for leave to amend his Complaint to cure the deficiencies as to the malicious prosecution claim asserted against Defendant Pascal only. Such motion shall be filed not later than twenty (20) days from the date of this Order.
BY THE COURT:
Wiley Y. Daniel
Chief United States District Judge