Opinion
Civil Action No. 11-cv-01371-PAB-MJW
02-23-2012
CHRISTOPHER P. IMESON, Plaintiff, v. MARK HURLBERT, in his official and individual capacities, TAMAR WILSON, in her official and individual capacities, TOWN OF AVON, COLORADO, BRIAN KOZAK, in his official and individual capacities, JEREMY ARNDT, in his official and individual capacities, and YVONNE RAMIREZ, in her official and individual capacities, Defendants.
Judge Philip A. Brimmer
ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION
This matter is before the Court on the Recommendation of United States Magistrate Judge Michael J. Watanabe filed on February 1, 2012 [Docket No. 29]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. See also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on February 1, 2012. No party has objected to the Recommendation.
In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ("[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"). In this matter, I have reviewed the Recommendation to satisfy myself that there is "no clear error on the face of the record." See Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, I have concluded that the Recommendation is a correct application of the facts and the law. Accordingly, it is
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).
ORDERED as follows:
1. The Recommendation of United States Magistrate Judge [Docket No. 29] is ACCEPTED.
2. The Motion to Dismiss Prosecutor Defendants [Docket No. 5] is granted, and the Complaint is dismissed with prejudice as against defendants Mark Hurlbert and Tamar Wilson.
3. The Motion to Dismiss Pursuant to Rule 12(b)(1) and 12(b)(6) [Docket No. 9] filed by defendants Kozak and Ramirez is granted as follows: with regard to defendant Kozak, the motion is granted and the Complaint is dismissed with prejudice. With regard to defendant Ramirez, the motion is granted, and the Complaint is dismissed without prejudice. Plaintiff may seek leave to amend his pleading solely with respect to a malicious prosecution claim pursuant to 42 U.S.C. § 1983 against defendant Ramirez in her individual capacity.
4. Defendant Town of Avon's Motion to Dismiss Pursuant to Rule 12(b)(6) [Docket No. 16] is GRANTED.
5. The Complaint is dismissed without prejudice as against unserved defendant Arndt pursuant to Fed. R. Civ. P. 4(m) based upon plaintiff's failure to prosecute and failure to serve defendant Arndt unless plaintiff shows good cause for failing to serve defendant Arndt.
BY THE COURT:
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PHILIP A. BRIMMER
United States District Judge