Portier v. Shoemaker

Full title: KENNETH W. PORTIER, Plaintiff(s), v. SERGEANT SHOEMAKER, CAPTAIN BARNETT…

Court: United States District Court, D. Colorado

Date published: Sep 28, 2006

Civil Action No. 05-cv-00634-WDM-PAC (D. Colo. Sep. 28, 2006)

Opinion

Civil Action No. 05-cv-00634-WDM-PAC.

September 28, 2006

ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE AND OTHER MATTERS

WALKER MILLER, District Judge

This matter is before me on the Recommendation of Magistrate Judge Patricia A. Coan, issued August 21, 2006, that defendant Sergeant Shoemaker's Motion to Dismiss (Docket No. 33) be granted as to the first claim for relief and that defendant Sergeant Keleman and the second claim for relief be dismissed without prejudice because of the failure to serve her. Plaintiff has not objected to this recommendation and therefore is not entitled to de novo review. 28 U.S.C. § 636(b).

I have reviewed the pertinent portions of the record in this case, including the parties' pleadings and the recommendation. I agree with Magistrate Judge Coan that the motion to dismiss should be granted and that the second claim for relief against defendant Keleman should be dismissed without prejudice.

The record also discloses that defendant Captain Barnett D. Bauer has never been served despite efforts by both parties. By order dated August 4, 2006, Magistrate Judge Coan ordered the plaintiff to provide a last known address for defendant Bauer on or before September 5, 2006, with the admonition that the failure to show good cause for not providing that address would result in the claim against defendant Bauer being dismissed. The plaintiff has not provided any address and the third claim for relief against defendant Bauer should likewise be dismissed without prejudice.

Accordingly, it is ordered:

1. The recommendation of Magistrate Judge Coan, issued August 21, 2006, is accepted;

2. Defendant Sergeant Shoemaker's motion to dismiss (Docket No. 33) is granted and the first claim for relief and defendant Shoemaker are dismissed with prejudice;

3. The second claim for relief against defendant Sergeant Eve Keleman is dismissed and defendant Keleman is dismissed without prejudice;

4. The third claim for relief against defendant Sergeant Barnett D. Bauer and Defendant Bauer are dismissed without prejudice;

5. Defendant may have their costs; and

6. This case shall be terminated.