Powell v. Rios et al

Filing 183

ORDER AFFIRMED AND ADOPTED 182 Report and Recommendations of United States Magistrate Judge. Denying 176 Defendant Wilners Motion for Summary Judgment; by Chief Judge Wiley Y. Daniel on 4/7/2010.(erv, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 06-cv-00545-WYD-MEH TONY E. POWELL, Plaintiff, v. J. WILNER, (S.I.A.), Defendant. ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE THIS MATTER is before the Court on Defendant Wilner's Motion for Summary Judgment filed September 30, 2009 [d/e 176]. This matter was referred to Magistrate Judge Michael E. Hegarty by Order of Reference dated November 9, 2007 [d/e 55] and reassigned to Magistrate Judge Kristen L. Mix on November 24, 2008 [d/e 155]. A Recommendation of United States Magistrate Judge was issued on March 1, 2010, regarding Defendant's motion and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b). Magistrate Judge Mix recommends therein that Defendant's motion be denied. Magistrate Judge Mix advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. (Rec., p. 15 [d/e 182]. Despite this advisement, no objections were filed by any party to Magistrate Judge Mix'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. Having reviewed the Recommendation, I am satisfied that genuine issues of fact exist precluding summary judgment at this stage of the proceedings. I also agree with Magistrate Judge Mix that Defendant has not demonstrated an entitlement to qualified immunity warranting summary judgment. Accordingly, it is hereby ORDERED that the Recommendation of United States Magistrate Judge dated March 1, 2010, is AFFIRMED and ADOPTED. In accordance therewith, it is FURTHER ORDERED that Defendant Wilner's Motion for Summary Judgment filed September 30, 2009 [d/e 176] is DENIED. Dated: April 7, 2010 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge

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).

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