Opinion
Civil Action No. 07-cv-00830-WYD-KMT.
September 30, 2008
ORDER
THIS MATTER is before the Court on Plaintiff's "Objections to U.S. Magistrate Judge's Report and Recommendation" and a Declaration filed September 19, 2008. By way of background, Magistrate Judge Tafoya issued a Recommendation on August 19, 2008, recommending that Defendants' Motion to Dismiss be granted. On August 28, 2008, Plaintiff filed a motion for extension of time to file objections. That motion was granted by Minute Order of August 29, 2008, wherein Plaintiff was granted an extension of time to file objections to the Recommendation up to September 15, 2008. The Minute Order indicated that no further extensions of time would be granted.
No Objections were filed by September 15, 2008. Further, Plaintiff did not seek another extension of time to file objections. I waited for a few more days and when no objections were filed by September 19, 2008, I filed an Order Affirming and Adopting the Recommendation of United States Magistrate Judge. On the same day, after the filing of my Order, Plaintiff filed his Objections and Declaration. Judgment was entered in the case on September 22, 2008.
I find that the Objections are untimely and that they should be stricken as such. Plaintiff's Objections do not indicate why they were not filed by September 15, 2008, or set forth any reason why I should consider them on their merits even though they are untimely. However, I have reviewed both the Objections and Declaration and find that they do not provide a basis to reject the Recommendation or to reverse my ruling in the Order affirming that Recommendation, even reviewing the Recommendation on a de novo basis. First, I find no valid reason to reject the portion of the Recommendation that recommends granting the motion to dismiss the official capacity claims under the doctrine of sovereign immunity. Second, while Plaintiff argues that the claims against Cooper in his individual capacity should survive dismissal, I find that Plaintiff has still not shown that he adequately alleged an affirmative link between the alleged constitutional violations and Defendant Cooper's participation. Accordingly, the Motion to Dismiss was properly granted and the Objections are overruled.
In conclusion, it is
ORDERED that Plaintiff's "Objections to U.S. Magistrate Judge Report and Recommendation" filed September 19, 2008, are OVERRULED.