Opinion
Civil Case No. 11-cv-02276-REB-KMT
08-24-2012
RAUL TRETO, Plaintiff, v. BOULDER COUNTY, Defendant.
Judge Robert E. Blackburn
ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Defendant's Motion to Dismiss [#12] filed October 28, 2011; and (2) the Order and Recommendation of United States Magistrate Judge [#19] filed January 4, 2012, which recommendation addresses the motion to dismiss. I approve the recommendation and grant the motion to dismiss, but without prejudice to facilitate the filing of a curative amended complaint.
"[#12]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
The plaintiff is proceeding pro se. Thus, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)).
Because no objections to the recommendation have been filed, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005). Finding no error, much less plain error, in the magistrate judge's recommended disposition of this case, I find and conclude that the recommendation should be approved and adopted as an order of this court.
This standard pertains even though plaintiff is proceeding pro se in this matter. Morales-Fernandez, 418 F.3d at 1122.
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In its motion, the defendant seeks dismissal of the plaintiff's complaint under FED. R. CIV. P. 12(b)(6). In her recommendation, the magistrate judge examines the allegations in the plaintiff's Title VII Complaint [#1] and applies properly the standard applicable under FED. R. CIV. P. 12(b)(6). I agree with the conclusion of the magistrate judge that, accepting the plaintiff's factual allegations as true, the complaint does not state a claim for which relief can be granted. Consistent with the recommendation of the magistrate judge, I grant the plaintiff a brief time to file an amended complaint, should he choose to do so.
THEREFORE, IT IS ORDERED as follows:
1. That the Order and Recommendation of United States Magistrate Judge [#19] filed January 4, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That the Defendant's Motion to Dismiss [#12] filed October 28, 2011, is GRANTED;
3. That the plaintiff's complaint [#1] is DISMISSED without prejudice;
4. That on or before September 21, 2012, the plaintiff MAY FILE an amended complaint;
5. That if the plaintiff does not file an amended complaint on or before September 21, 2012, the court will enter an order directing the entry of judgment in favor of the defendant and closing this case.
Dated August 24, 2012, at Denver, Colorado.
BY THE COURT:
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Robert E. Blackburn
United States District Judge