Opinion
Civil Action No. 05-cv-01382-PSF-CBS.
June 27, 2006
ORDER ACCEPTING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the Report and Recommendations of United States Magistrate Judge (Dkt. # 57), filed May 3, 2006. The Court's review of the Recommendations is governed by 28 U.S.C. § 636(b)(1) and F.R.Civ.P. 72(b). As no party has objected to the Recommendations, the Court has reviewed the Report and Recommendations to determine if it constitutes clear error. See Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) ("In absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate."). After reviewing the underlying motions and the record, the Court concludes that the Recommendations represent a correct application of the facts and the law and are not clearly erroneous.
The Court specifically finds and agrees with the Magistrate Judge that: 1) plaintiff's claims against defendants in their official capacity are claims against the government entity, see Kentucky v. Graham, 473 U.S. 159, 166 (1985), which has not waived its sovereign immunity, see F.D.I.C. v. Meyer, 510 U.S. 471, 485 (1994), and, therefore, the official capacity claims should be dismissed for lack of subject matter jurisdiction pursuant to F.R.Civ.P. 12(b)(1); 2) regardless of whether the Court accepts plaintiff's Kentucky filing or Colorado filing, see Pl.'s Resp. (Dkt. # 52) at 2, the claims against defendants in their individual capacities are time-barred by the applicable statute of limitations — Colorado's — C.R.S. § 13-80-102 and, therefore, the individual capacity claims should be dismissed; 3) plaintiff cannot assert subject matter jurisdiction pursuant to 28 U.S.C. § 1343 for § 1983 claims against federal officials, see Brown v. Smith, 828 F.2d 1493, 1494 (10th Cir. 1987); and 4) plaintiff's failure to establish subject matter jurisdiction or a viable claim requires the Court to dismiss the claims. See F.R.Civ.P. 12(h)(3).
The Magistrate Judge also provided recommendations on the defendants' motions to dismiss for failure to exhaust administrative remedies and for failure to state a claim upon which relief can be granted. See Mag. Rec. (Dkt. # 57) at 9, 18. However, because the Court has determined that it lacks subject matter jurisdiction to adjudicate certain claims with the others time-barred, the Court need not reach the issues of administrative exhaustion of the sufficiency of the claims. Accordingly, it is
ORDERED as follows:
1. The Court accepts and adopts the Recommendation of the United States Magistrate Judge (Dkt. #57) with respect to the motions to dismiss for lack of subject matter jurisdiction and on statute of limitations grounds; and
2. The Court GRANTS Defendants' Motion to Dismiss (Dkt. # 42), filed January 30, 2006, and this lawsuit is DISMISSED WITH PREJUDICE in its entirety.