Opinion
Civil Action No. 11-cv-03127-PAB-KMT
02-19-2013
EUGENE VELARDE, Plaintiff, v. PAMELA PLOUGHE, JOYCE CROUNK, SUSAN TIONA, DAVID OBA, KATHY HOLT, LINSEY FISH, MARY CARTER, DEBORAH SHOCK, KAREN MITCHELL, KATHLEEN BOYD, and BARBARA FERGUSON, Defendants.
Judge Philip A. Brimmer
ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION
This matter is before the Court on the Recommendation of United States Magistrate Judge Kathleen M. Tafoya filed on January 29, 2013 [Docket No. 75]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. See 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on January 29, 2013. No party has objected to the Recommendation.
In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ("[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"). In this matter, the Court has reviewed the Recommendation to satisfy itself that there is "no clear error on the face of the record." Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has concluded that the Recommendation is a correct application of the facts and the law. Accordingly, it is
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).
ORDERED as follows:
1. The Recommendation of United States Magistrate Judge [Docket No. 75] is ACCEPTED.
2. Defendant Dr. David Oba's Motion to Dismiss [Docket No. 31] is GRANTED, and the Eighth Amendment claims against defendant Oba are dismissed pursuant to Fed. R. Civ. P. 12(b)(6).
3. Defendant Dr. David Oba's Motion to Dismiss Plaintiff's Second and Final Amended Prisoner Complaint for Failure to Comply with Court Rules [Docket No. 65] is DENIED as moot.
4. Plaintiff's "Amendment of the Pleadings" [Docket No. 58], which the Court construed as a motion to amend the complaint, is DENIED.
5. Defendant Dr. David Oba is dismissed from this case.
BY THE COURT:
___________
PHILIP A. BRIMMER
United States District Judge