Opinion
Civil Action No. 10-cv-00794-WYD-BNB
11-28-2011
RODNEY RAY ZIMMERMAN, Plaintiff, v. SUSAN JONES, MIKE BORGONDO, MR. WRIGHT, CATHIE HOLST, MR. MARTZ, MRS. MCCORMICK, CHARLEEN CROCKETT, JOHN DOE PROPERTY SGT. OF 3-16-10, and MR. PADILLA, Defendants.
ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court in connection with Defendants' Motion to Dismiss With Prejudice Pursuant to Fed. R. Civ. P. 41(b) [ECF No. 160], filed September 21, 2011. Defendant's motion was referred to United States Magistrate Judge Boland for a recommendation by Order of Reference dated September 29, 2010 [ECF No. 43] and the Memorandum dated September 21, 2011 [ECF No. 161]. Magistrate Judge Boland issued a Recommendation on November 2, 2011 [ECF No. 180]. The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b), D.C.COLO.LR. 72.1.
Magistrate Judge Boland recommends therein that Defendants' Motion to Dismiss with Prejudice Pursuant to Fed. R. Civ. P. 41(b) be granted. Specifically, Magistrate Judge Boland finds that the Plaintiff has failed to comply with two orders to appear for his own deposition and with the Scheduling Order. Magistrate Judge Boland further finds that on account of Plaintiff's behavior and non-compliance, there has been appreciable prejudice to the Defendants, a substantial interference with the judicial process, and that plaintiff is "obviously culpable" in his non-compliance. See Recommendation at 5 [ECF No. 180]. Magistrate Judge Boland finds that dismissal with prejudice is the only effective sanction, given that he has demonstrated a "lack of respect for the court and the judicial system." Id. at 5-6.
Magistrate Judge Boland advised the parties that written objections were due within fourteen (14) days after service of a copy of the Recommendation. Id. at 6. Despite this advisement, no objections were filed to the 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 find that Magistrate Judge Boland's Recommendation is thorough, well-reasoned and sound. I agree with Magistrate Judge Boland that Defendants' Motion to Dismiss With Prejudice Pursuant to Fed. R. Civ. P. 41(b) [ECF No. 160], filed September 21, 2011, should be granted for the reasons stated in both the Recommendation and this Order. Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Boland [ECF No. 180], filed November 2, 2011, is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Defendants' Motion to Dismiss With Prejudice Pursuant to Fed. R. Civ. P. 41(b) [ECF No. 160], filed September 21, 2011, is GRANTED and this action is DISMISSED WITH PREJUDICE.
BY THE COURT:
WILEY Y. DANIEL,
CHIEF UNITED STATES DISTRICT JUDGE