Opinion
Civil Action No. 12-cv-00258-WYD-MJW
06-21-2012
SHARON R. ROSE, Plaintiff, v. KENNETH L. SALAZAR, Secretary, Department of the Interior, in charge of the U.S. Fish and Wildlife Service, a Federal Agency, under his department, Defendant.
Chief Judge Wiley Y. Daniel
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGGISTRATE JUDGE
THIS MATTER is before the Court on Defendant's Partial Motion to Dismiss (ECF No. 11), filed April 16, 2012. The motion was referred to Magistrate Judge Michael J. Watanabe for a Recommendation by Order of Reference dated February 8, 2012. Magistrate Judge Watanabe issued a Recommendation on May 14, 2012. Specifically, Magistrate Judge Watanabe recommends that the pending motion be granted to the extent that any claims based on the discrete incidents of discrimination alleged in paragraphs 45, 46, or 47 of Plaintiff's complaint are barred. Magistrate Judge Watanabe also recommends that the motion be denied as to the assertion that paragraph 44 does not allege a discrete incident of discrimination. (ECF No. 17, Recommendation at 4). The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b).
Magistrate Judge Watanabe advised the parties that written objections were due within fourteen (14) days after service of a copy of the Recommendation. (Recommendation at 4-5). Despite this advisement, no objections were filed to the Recommendation. No objections having been filed, I am vested with discretion to review the Recommendation "under any standard [I] deem[] appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[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"). Nonetheless, though not required to do so, I review the Recommendation to "satisfy [my]self that there is no clear error on the face of the record." See Fed. R. Civ. P. 72(b) Advisory Committee Notes.
Note, 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).
Having reviewed the Recommendation, I am satisfied that there is no clear error on the face of the record. I find that Magistrate Judge Watanabe's Recommendation is thorough, well reasoned and sound. I agree with Magistrate Judge Watanabe that the pending motion should be granted in part and denied in part for the reasons stated in both the Recommendation and this Order.
Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Watanabe (ECF No. 17) is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Defendant's Partial Motion to Dismiss (ECF No. 11) is GRANTED to the extent that any claims based on the discrete incidents of discrimination alleged in paragraphs 45, 46, or 47 of Plaintiff's complaint are barred. The motion is DENIED as to the argument that paragraph 44 does not allege a discrete incident of discrimination.
BY THE COURT:
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Wiley Y. Daniel
Chief United States District Judge