Opinion
Civil Action 20-cv-02691-RM-KLM
08-27-2021
EDGAR NELSON PITTS, Plaintiff, v. ANDRE MATEVOUSIAN, in his official capacity as Warden, FREDERICK FRANDLE, in his official capacity as Hearing Administrator, and UNKNOWN PSYCHOLOGIST, Defendants.
ORDER
RAYMOND P. MOORE, United States District Judge.
This matter is before the Court on the following matters:
(1) Magistrate Judge Kristen L. Mix's Recommendation (ECF No. 67) to (a) grant Defendants Matevousian and Frandle's Motion to Dismiss (ECF No. 38) and dismiss the claims against them without prejudice and (b) sua sponte dismiss, without prejudice, the claims against Defendant Unknown Psychologist; and
(2) Plaintiff's Motion to Amend Complaint (ECF No. 69). The Court addresses these matter below.
The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).
I. DISCUSSION
The Recommendation.
The Recommendation advised the parties that specific written objections were due within fourteen days after being served with a copy of the Recommendation. (ECF No. 67, page 22.) In his Motion to Amend, Plaintiff states he does not object and wishes to amend. Defendants filed no objections and the time to do so has expired. (See generally Dkt.)
The Court concludes that Magistrate Judge Mix's analysis was thorough and sound, and that there is no clear error on the face of the record. See Fed. R. Civ. P. 72(b) advisory committee's note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate.”). The Recommendation is, therefore, accepted and adopted as an order of this Court.
The Motion to Amend. The Recommendation recognized that “ordinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice, …and a careful judge will explain the pleading's deficiencies so that a prisoner with a meritorious claim can then submit an adequate complaint.” Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). And, concurrent with her Recommendation, the Magistrate Judge issued an Appointment Order finding the relevant factors merit the appointment of pro bono counsel for Plaintiff. But, of course, the Clerk must be able to find a Panel member who will undertake Plaintiff's case, and there is no guarantee that the Clerk will be able to do so. (ECF No. 68.)
With this background, Plaintiff now seeks 45 days to file an amended complaint. The Court finds good cause to grant Plaintiff time to do so.
The Court finds no further briefing on the motion is required before ruling. See D.C.COLO.LCivR 7.1(d).
Other Pending Motion. Plaintiff's Motion for Temporary Restraining Order and/or Preliminary Injunction (ECF No. 37) is pending. In light of the dismissal, without prejudice, of Plaintiff's claims on which this motion is based, the motion is denied without prejudice.
II. CONCLUSION
Based on the foregoing, the Court ORDERS as follows:
(1) That the Recommendation of United States Magistrate Judge (ECF No. 67) is ACCEPTED and ADOPTED in its entirety;
(2) That Defendants Matevousian and Frandle's Motion to Dismiss (ECF No. 38) is GRANTED and Plaintiffs claim against them are dismissed without prejudice;
(3) That the claim against Defendant Unknown Psychologist is dismissed without prejudice;
(4) That Plaintiffs Motion to Amend (ECF No. 69) is GRANTED and Plaintiff is granted to and including October 12, 2021 in which to file an amended complaint; and
(5) That Plaintiff s Motion for injunctive relief (ECF No. 37) is DENIED WITHOUT PREJUDICE.