Stine et al v. Lappin et al

Filing 254

ORDER AFFIRMED AND ADOPTED 222 Report and Recommendations of United States Magistrate Judge; granting in part and denying in part 163 Defendants Motion to Dismiss; It is FURTHER ORDERED that all claims against Defendants Lappin and Nailey in thei r individual capacities are DISMISSED. It is FURTHER ORDERED that Claim II is DISMISSED. It is FURTHER ORDERED that Defendants Motion is DENIED as to Claim I to the extent that Claim I asserts a claim for injunctive or nonmonetary relief against Defendants in their official capacities and a claim for monetary relief against Defendant Wiley in his individual capacity.Signed by Chief Judge Wiley Y. Daniel on 1/14/09.(erv, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Wiley Y. Daniel Civil Action No. 07-cv-01839-WYD-KLM MIKEAL GLENN STINE and Plaintiffs, v. HARLEY LAPPIN, Director B.O.P.; MICHAEL NALLEY, Regional Director B.O.P.; and RON WILEY, Warden ADX Supermax, Defendants. ORDER THIS MATTER is before the Court in connection with Defendants' Motion to Dismiss Plaintiff Stine's Claims (docket #163), filed July 15, 2008. This motion was referred to Magistrate Judge Mix for a recommendation by Order of Reference dated March 7, 2008. A Recommendation of United States Magistrate Judge was issued on October 21, 2008, 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 Defendants' motion to dismiss be granted in part and denied in part. Specifically, she recommends that (1) all claims should be dismissed against Defendants Lappin and Nalley in their individual capacities (2) Claim two should be dismissed; and (3) Claim one should survive to the extent that it asserts a claim for injunctive or nonmonetary relief against Defendants in their official

capacities and a claim for monetary relief against Defendant Wiley in his individual capacity. Magistrate Judge Mix advised the parties that specific written objections were due within ten (10) days after being served with a copy of the Recommendation. Recommendation at 25. Despite this advisement, no objections were filed by any party 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. Having reviewed the Recommendation, I am satisfied that there is no clear error on the face of the record. I agree with Magistrate Judge Mix that Plaintiff's requests for injunctive relief against Defendants is not barred by the doctrine of sovereign immunity. I further agree that the motion to dismiss must be denied as to the Fifth Amendment claim at this stage of the proceeding. Finally, I agree with Magistrate Judge Mix that Plaintiff's claims against Defendants Lappin and Nalley in their individual capacities must be dismissed in addition to Claim II of Plaintiff's Complaint. Accordingly, it is

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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hereby ORDERED that the Recommendation of United States Magistrate Judge dated October 21, 2008, is AFFIRMED and ADOPTED. It is FURTHER ORDERED that Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. It is FURTHER ORDERED that all claims against Defendants Lappin and Nailey in their individual capacities are DISMISSED. It is FURTHER ORDERED that Claim II is DISMISSED. It is FURTHER ORDERED that Defendants' Motion is DENIED as to Claim I to the extent that Claim I asserts a claim for injunctive or nonmonetary relief against Defendants in their official capacities and a claim for monetary relief against Defendant Wiley in his individual capacity. Dated: January 14, 2009 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel U. S. District Judge

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