Dilger v. Office of The Attorney General et al
Filing
21
ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge 20 is AFFIRMED and ADOPTED. ORDERED that Defendant's Motion to Dismiss 18 is GRANTED and th is case is DISMISSED WITH PREJUDICE. ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this recommendation would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of appeal by Judge Wiley Y. Daniel on 03/21/13.(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-02491-WYD-KMT
ROBIN E. DILGER,
Plaintiff,
v.
CASE MANAGER GLEN SCHAFFER, La Vista Correctional Facility,
Defendants.
ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court in connection with Defendant Schaffer’s
Motion to Dismiss filed January 31, 2012. This motion was referred to Magistrate Judge
Tafoya for a recommendation by Order of Reference of December 5, 2012, and
Memorandum of January 31, 2013. A Recommendation of United States Magistrate
Judge was issued on February 27, 2013, and is incorporated herein by reference.
By way of background, this action is brought under 42 U.S.C. § 1983 by a
convicted felon who was previously incarcerated in the Colorado Department of
Corrections (“CDOC”). She asserts that her rights under the Eighth Amendment and
Thirteenth Amendment were violated. Defendant Schaffer is employed by CDOC as a
Case Manager at the La Vista Correctional Facility. The other defendants to the case
were dismissed by Order of November 29, 2012.
Magistrate Judge Tafoya recommends that Defendant Schaffer’s Motion to
Dismiss be granted, and that the case be dismissed in its entirety. (Recommendation at
11.) As grounds therefor, she finds that Plaintiff’s official-capacity claims for monetary
relief against Defendant are barred by the Eleventh Amendment and should be
dismissed for lack of subject matter jurisdiction. (Id. at 6-7.) She further finds that
Plaintiff has not stated claims for Thirteenth or Eighth Amendment violations, and that
Defendant is entitled to qualified immunity. (Id. at 7-11.)
Magistrate Judge Tafoya advised the parties that specific written objections were
due within fourteen (14) days after service of a copy of the Recommendation.
(Recommendation at 12.) Despite this advisement, no objections were filed to the
Magistrate Judge's 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."1 See Fed. R. Civ. P.
72(b) Advisory Committee Notes.
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-
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 well
reasoned and that Defendant Schaffer’s Motion to Dismiss should be granted for the
reasons stated therein. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
February 27, 2013 (ECF No. 20) is AFFIRMED and ADOPTED. In accordance
therewith, it is
ORDERED that Defendant’s Motion to Dismiss filed January 31, 2013 (ECF No.
18) is GRANTED and this case is DISMISSED WITH PREJUDICE. Finally, it is
ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this recommendation would not be taken in good faith and, therefore, in
forma pauperis status is denied for the purpose of appeal.
Dated: March 21, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
-3-
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