Capener v. Napolitano et al, No. 2:2011cv00601 - Document 40 (D. Utah 2013)

Court Description: MEMORANDUM DECISION AND ORDER ADOPTING 39 REPORT AND RECOMMENDATIONS re 22 Amended Complaint. Signed by Judge David Nuffer on 11/7/13 (alt)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION MERCEDES CAPENER, Plaintiff, MEMORANDUM DECISION and ORDER ADOPTING REPORT AND RECOMMENDATIONS v. Case No. 2:11-CV-601-DN-DBP JANET NAPOLITANO, Secretary of Department of Homeland Security, et al. Defendants. District Judge David Nuffer This case was referred to Magistrate Judge Dustin Pead under 28 U.S.C. § 636(b)(1)(B). 1 After extensive briefing on the issues raised, 2 Judge Pead issued the Report & Recommendations (R & R) 3 recommending that this court: (1) FIND it has subject matter jurisdiction over Plaintiff s amended complaint; (2) AFFIRM Defendants decision to deny Plaintiff s adjustment Application because Defendants did not violate 5 U.S.C. § 706(2)(A); and (3) DENY Plaintiff s request for injunctive relief. 4 The parties were notified of their right to file objections within 14 days of being served with a copy of the R & R. 5 No objections to the R & R were filed or received by the court. 1 Order Referring Case, docket no. 28, filed September 10, 2012. 2 Defendants Brief in Response to Plaintiff s Amended Complaint, docket no. 26, filed August 17, 2012; Plaintiff s Reply to Defendants Response, docket no. 27, filed September 6, 2012; Defendants Response to Plaintiff s Reply, docket no. 29, filed September 20, 2012; Request for Supplemental Briefing, docket no. 31, filed November 21, 2012; Clarification re Request for Supplemental Briefing, docket no. 32, filed November 22, 2012; Defendants Supplemental Brief, docket no. 34, filed December 21, 2012; Plaintiff s Supplemental Briefing, docket no. 35, filed December 21, 2012; Order Requesting Plaintiff Provide Supplemental Briefing on Jurisdictional Issue, docket no. 37, filed April 25, 2013; Plaintiff s Second Supplemental Briefing, docket no. 38, filed May 10, 2013. 3 Report and Recommendations, docket no. 39, filed October 16, 2013. 4 Id. at 14. 5 Id. The court has conducted a review of the issues and finding no clear error, 6 agrees with Judge Pead s thorough analysis, conclusions and recommendations. Accordingly, the R & R is adopted as the order of this court. ORDER IT IS HEREBY ORDERED that the R & R 7 is ADOPTED as the order of the court. IT IS FURTHER ORDERED that the court: (1) FINDS it has subject matter jurisdiction over Plaintiff s amended complaint; (2) AFFIRMS Defendants decision to deny Plaintiff s adjustment Application because Defendants did not violate 5 U.S.C. § 706(2)(A); and (3) DENIES Plaintiff s request for injunctive relief. The clerk is directed to close this case. Signed November 7, 2013. BY THE COURT ________________________________________ District Judge David Nuffer 6 See 28 U.S.C. § 636(b)(1) (requiring de novo review of only those portions of the report or specified proposed findings or recommendations to which objection is made ) and Fed.R.Civ.P. 72(b)(3) (same). See also, Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir.1988) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)) ( The clearly erroneous standard . . . requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed. ). 7 Docket no. 39. 2