Sanaah v. Arrellano et al

Filing 53

RECOMMENDATION TO DENY MOTION TO DISMISS AS MOOT AND ORDER SETTING RESPONSE DEADLINE. That the Motion to Dismiss 32 be DENIED as moot. Plaintiff shall respond to Defendants Motion to Dismiss Second Amended Complaint 51 on or before 07/20/2009. By Magistrate Judge Kristen L. Mix on 06/29/2009. (sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 08-cv-02117-REB-KLM EMMANUEL SANAAH, Plaintiff, v. NURSE DEBB HOWELL, WARDEN ARELLANO, MAJOR SCOTT GROVER, Life Safety Coordinator and Maintenance Supervisor, MAINTENANCE WORKER LT. BOSLEY, and ARISTEDES ZAVARAS, all in their official and individual capacities, Defendants. _____________________________________________________________________ RECOMMENDATION TO DENY MOTION TO DISMISS AS MOOT AND ORDER SETTING RESPONSE DEADLINE _____________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX This matter is before the Court on Defendants' Motion to Dismiss [Docket No. 32; Filed April 8, 2009] ("Motion to Dismiss"). After the Motion to Dismiss was filed, Plaintiff was given leave to file an Amended Complaint [Docket Nos. 45 & 46]. The filing of an amended complaint serves to moot any pending motions to dismiss directed at the superceded complaint. See Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006). Further, I note that Defendants have now filed a second motion to dismiss Plaintiff's Amended Complaint [Docket No. 51]. Pursuant to 28 U.S.C. § 636(b)(1) and D.C. Colo. L. Civ. R. 72.1(C)(3), the first Motion to Dismiss has been referred to this Court for recommendation. IT IS HEREBY RECOMMENDED that the Motion to Dismiss [#32] be DENIED as moot.

IT IS FURTHER ORDERED that Plaintiff shall respond to Defendants' Motion to Dismiss Second Amended Complaint [#51] on or before July 20, 2009. IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have ten (10) days after service of the Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dept. of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Dated: June 29, 2009 BY THE COURT: s/ Kristen L. Mix U.S. Magistrate Judge Kristen L. Mix

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