Opinion
Civil Action No. 10-cv-02135-WYD-MJW
09-27-2011
MARINO BERNARD SCOTT Plaintiff, v. NORMA M. HILDE, (SIS Tech/Office) and TIMOTHY M. POLAND, (Mailroom Officer), Defendants.
Chief Judge Wiley Y. Daniel
ORDER AFFIRMING AND ADOPTING
UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION
THIS MATTER is before the Court on Defendants' Motion to Dismiss [ECF No. 45], filed February 24, 2011. This motion was referred to Magistrate Judge Watanabe for a recommendation on February 25, 2011 [ECF No. 46]. Magistrate Judge Watanabe issued a Recommendation on September 2, 2011 [ECF No. 65], which is incorporated herein by reference. See 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), D.C.COLO.LCivR. 72.1. Magistrate Judge Watanabe recommends that Defendants' Motion to Dismiss be granted. He advised the parties that specific written objections were due within 14 days after service of his Recommendation. (Rec. at 14).
On September 12, 2011, Plaintiff filed a "Motion to Grant Plaintiffs' Pending Complaint Under 28 U.S.C. § 1331 and Bivens v. Six Un-Known Agents [ECF No. 67], which Plaintiff styles as response to Defendant's Motion to Dismiss (ECF No. 45). Plaintiff's response to Defendants' Motion to dismiss is untimely, as it was filed nearly seven months after Defendants' Motion. Plaintiff did not seek leave to file an untimely response. Furthermore, Plaintiff's untimely response does not contain specific objections to any of the Magistrate Judge's proposed findings nor does it reference the recommendation at all. Instead, the Plaintiff responds directly to the arguments asserted in Defendants' motion to dismiss. Since Plaintiff has not posited any specific objections or argued any specific grounds as to why the Recommendation should be reversed, I find that he waived de novo review.
Accordingly, no proper objections having been filed, I am vested with discretion to review Magistrate Judge Watanabe's 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").
Having reviewed the Recommendation, I am satisfied that there is no clear error on the face of the record. Further, even considering the arguments made by Plaintiff in his untimely response to the motion to dismiss, and even applying a de novo review, I find that Magistrate Judge Watanabe's Recommendation is well reasoned and should be affirmed. I agree with Magistrate Judge Watanabe that the pending motion should be granted for the reasons stated in both the Recommendation and this Order. It is therefore
ORDERED that the Recommendation of United States Magistrate Judge [ECF No. 65] is AFFIRMED AND ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Defendants Motion to Dismiss [ECF No. 45] is GRANTED. It is
FURTHER ORDERED that Plaintiff's Amended Complaint is DISMISSED WITH PREJUDICE.
BY THE COURT:
Wiley Y. Daniel
Chief United States District Judge