Handy v. Robinson
Filing
36
ORDER Affirming and Adopting Recommendation of the United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge Tafoya 35 is AFFIRMED and ADOPTED. ORDERED that Plaintif's "Motion for Order Class Action Certification and for the Appointment of Class Counsel" 25 is DENIED. ORDERED that Plaintiff's "Motion to Amend Complaint" 17 is DENIED. ORDERED that "Defendant's Motion to Dismiss Pursuant to Fed. R.Civ. P. 12(b)" 19 is DENIED as moot. ORDERED that Plaintiffs Amended Complaint 9 is DISMISSED without prejudice for lack of subject matter jurisdiction by Judge Wiley Y. Daniel on 03/08/13.(jjhsl, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No.
12-cv-01228-WYD-KMT
WYATT T. HANDY, JR.,
Plaintiff,
v.
GREYSON ROBINSON, Sheriff,
Defendant.
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court on the following motions: (1) Plaintiff’s “Motion
for Order Class Action Certification and for the Appointment of Class Counsel” (ECF No.
25); (2) Plaintiff’s “Motion to Amend Complaint” (ECF No. 17); and (3) “Defendant’s
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)” (ECF No. 19). (Recommendation at
8). In her Recommendation, Magistrate Judge Tafoya recommends that the pending
motions be denied and that Plaintiff’s Amended Complaint (ECF No. 9) be dismissed
without prejudice for lack of subject matter jurisdiction. (Recommendation at 8). The
Recommendation is incorporated herein by reference. See 28 U.S.C. ' 636(b)(1)(B),
Fed. R. Civ. P. 72(b).
Magistrate Judge Tafoya advised the parties that written objections were due
within fourteen (14) days after service of a copy of the Recommendation.
(Recommendation at 8-9). Despite this advisement, no objections were filed to the
Recommendation. No objections having been filed, I am vested with discretion to review
the Recommendation Aunder 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."1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes.
Having reviewed the Recommendation, I am satisfied that there is no clear error on
the face of the record. I find that Magistrate Judge Tafoya’s Recommendation is
thorough, well reasoned and sound. I agree with Magistrate Judge Tafoya that the
pending motions should be denied and Plaintiff’s Amended Complaint should be
dismissed without prejudice 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 Tafoya
(ECF No. 35) is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Plaintiff’s “Motion for Order Class Action Certification
and for the Appointment of Class Counsel” (ECF No. 25) is DENIED. It is
1
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).
-2-
FURTHER ORDERED that Plaintiff’s “Motion to Amend Complaint” (ECF No. 17)
is DENIED. It is
FURTHER ORDERED that “Defendant’s Motion to Dismiss Pursuant to Fed. R.
Civ. P. 12(b)” (ECF No. 19) is DENIED as moot. It is
FURTHER ORDERED that Plaintiff’s Amended Complaint (ECF No. 9) is
DISMISSED without prejudice for lack of subject matter jurisdiction.
Dated: March 8, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
-3-
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