Wise v. Montez

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer Civil Action No. 18-cv-01908-PAB-KLM REUBEN ROBERT EUGENE WISE, Plaintiff, v. CHRISTINA MONTEZ, JANIELLE WESTERMIRE, DAVID HARMON, J. ZELLAR, DIXIE SMITH, AMANDA WRIGHT, SEPTIMBER TOPAI, MCCABE, MCDF SERGEANT, and MATT LEWIS, Defendants. _____________________________________________________________________ ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION _____________________________________________________________________ This matter is before the Court on the Recommendation of United States Magistrate Judge Kristen L. Mix filed on July 12, 2019 [Docket No. 85]. 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 July 12, 2019 and was remailed to plaintiff on August 5, 2019. 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.”1 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 ORDERED as follows: 1. The Recommendation of United States Magistrate Judge [Docket No. 85] is accepted.

2. Defendant Septimber Topai’s Motion to Dismiss Based on Insufficient Service [Docket No. 28] is granted.

3. This case is dismissed without prejudice as to defendant Septimber Topai pursuant to Fed. R. Civ. P. 12(b)(5).

DATED August 29, 2019.

BY THE COURT: s/Philip A. Brimmer PHILIP A. BRIMMER Chief United States District Judge 1This 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).