Opinion
Civil Action No. 06-cv-00064-WYD-MEH.
August 31, 2006
ORDER ADOPTING AND AFFIRMING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court in connection with Defendants' Motion to Dismiss filed June 8, 2006 (docket #15). This motion was referred to Magistrate Judge Hegarty for a recommendation by Order of Reference dated June 9, 2006. A Recommendation of United States Magistrate Judge Hegarty was issued on August 8, 2006, and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff brings this lawsuit pursuant to 42 U.S.C. § 1983 for alleged violations of his constitutional rights. He contends that he was invidiously discriminated against and was denied due process in a disciplinary proceeding. Defendants moved to dismiss the case asserting, among other things, that Plaintiff failed to exhaust his administrative remedies under the Prison Litigation Reform Act ("PLRA") prior to bringing suit. Magistrate Judge Hegarty recommends that Defendants' Motion to Dismiss be granted in part with regard to the issue of exhaustion and denied in part as moot with regard to Defendants' remaining arguments. Magistrate Judge Hegarty further recommends that Plaintiff's Complaint be dismissed without prejudice based on Plaintiff's failure to exhaust his administrative remedies. Recommendation at 9.
Magistrate Judge Hegarty advised the parties that specific written objections were due within ten (10) days after being served with a copy of the Recommendation. Recommendation at 1. Despite this advisement, no objections were filed by any party to the Magistrate Judge's 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 agree with Magistrate Judge Hegarty that Plaintiff has failed to exhaust his administrative remedies with regard to his claimed violations of due process, and that this matter should be dismissed without prejudice. Accordingly, it is hereby
ORDERED that the Recommendation of United States Magistrate Judge Hegarty dated August 8, 2006, is AFFIRMED and ADOPTED. In accordance therewith, it is
ORDERED that Defendants' Motion to Dismiss filed June 8, 2006 (docket #15) is GRANTED and this case is DISMISSED WITHOUT PREJUDICE.