Marshall v. Milyard et al

Filing 44

ORDER. The Recommendation of United States Magistrate Judge 29 is ACCEPTED. Plaintiffs Motion: Default Judgment under Rule 55(e) 26 is DENIED by Judge Philip A. Brimmer on 02/17/2009.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Action No. 08-cv-00299-PAB-BNB ERIC MARSHALL, Plaintiff, v. KEVIN MILYARD, Warden, FLOYD WAID, West CC Manager, M. NEGLEY, Captain/Shift Commander, STEVEN BADE, Lt., JAMES FRYER, Correctional Officer, and ANTHONY DECESARO, Grievance Officer, Defendants. _____________________________________________________________________ ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION _____________________________________________________________________ This matter is before the Court on the Recommendation of United States Magistrate Judge Boyd N. Boland filed on September 25, 2008 [Docket No. 29]. The Recommendation states that objections to the Recommendation must be filed within ten days after its service on the parties. See also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on September 25, 2008. No party has objected to the Recommendation. In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) ("[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"). In this matter, I have reviewed the Recommendation to satisfy myself that there is "no clear error on the face of the record."1 See Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, I have concluded that the Recommendation is a correct application of the facts and the law. Accordingly, it is ORDERED as follows: 1. The Recommendation of United States Magistrate Judge [Docket No. 29] is ACCEPTED. 2. Plaintiff's Motion: Default Judgment under Rule 55(e) [Docket No. 26] is DENIED.

DATED February 17, 2009. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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

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