Opinion
Civil Action 21-cv-01837-PAB-MEH
08-24-2022
STEPHEN SUSINKA, Plaintiff, v. A. TRUJILLO, J. WILCOX, FEDERAL BUREAU OF PRISONS, and UNITED STATES OF AMERICA, Defendants.
ORDER
PHILIP A. BRIMMER, Chief United States District Judge.
This matter is before the Court on Plaintiff's Objection to Magistrate's December 6, 2021 Recommendation [Docket No. 21].
I. BACKGROUND
Plaintiff initiated this action on July 6, 2021. Docket No. 1. Pursuant to the Court's orders, plaintiff filed an amended prisoner complaint on October 26, 2021 based on incidents that occurred while plaintiff was incarcerated at the United States Penitentiary in Florence, Colorado. Docket No. 12. On December 6, 2021, the magistrate judge issued a recommendation to dismiss some of the claims. Docket No. 18 at 17-18. The recommendation was physically mailed to plaintiff at the same address listed on his subsequent objection on December 6, 2022. Id. On January 7, 2022, Senior Judge Lewis T. Babcock, in the absence of an objection, accepted the recommendation. Docket No. 19 at 1-2. On January 10, 2022, the Court docketed plaintiff's objection to the recommendation. Docket No. 21. In his objection, plaintiff states that he did not receive the recommendation until January 5, 2022. Id. at 1.
In light of plaintiff's pro se status, the Court reviews his filings liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).
II. ANALYSIS
A. Timeliness of Objection
The Court will “determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. See United States v. One Parcel of Real Prop. Known as 2121 E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996)). Plaintiff's objection was mailed and received more than fourteen days after the issuance of the objection, making it untimely.
Plaintiff states that he did not receive the recommendation until January 5, 2022. Docket No. 21 at 1, 4. The CM/ECF system indicates that the recommendation was mailed on December 6, 2021. Docket No. 18. The Court mailed it to the same address that the other filings in this case have been mailed. See, e.g., Docket Nos. 14, 15 (responding to order to show cause mailed to plaintiff's address). Plaintiff has received mail at this address throughout the case. Id. Plaintiff has not provided any evidence to support his contention that he did not receive the objection until January 5, 2022. For instance, plaintiff does not attach an excerpt of a mail log. The Court accordingly finds that plaintiff has waived de novo review and will review the recommendation for clear error. Cf. Martinez v. Thrailkill, No. 17-cv-02769-RM-KMT, 2019 WL 1292859, at *2 (D. Colo. Mar. 21, 2019) (striking untimely objection and reviewing magistrate judge recommendation for clear error). The Court has reviewed the magistrate judge's order to satisfy itself that there is “no clear error on the face of the record.” Fed.R.Civ.P. 72(b), Advisory Committee Notes. Accordingly, the Court will overrule plaintiff's objection.
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).
B. Mootness of Objection
The Court will overrule plaintiff's objection for an additional reason. On April 15, 2022, plaintiff filed a motion to amend the complaint, stating that he removed the claims dismissed by Judge Babcock's order accepting the recommendation. Docket No. 31 at 1. On May 6, 2022, the magistrate judge granted plaintiff's motion to amend and directed the Clerk of Court to docket the Second Amended Complaint. Because plaintiff has filed a new complaint, the Court will overrule his objections to Judge Babcock's order as moot.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiff's Objection to Magistrate's December 6, 2021 Recommendation [Docket No. 21] is OVERRULED.