Kanzler v. Mclanglin et al

Filing 39

ORDER ADOPTED AND AFFIRMED 38 Report and Recommendations of United States Magistrate Judge ; granting 33 Defendant DeGrootes Motion to Dismiss Second Amended Complaint filed September 22, 2009, and this action is DISMISSED. by Chief Judge Wiley Y. Daniel on 5/13/2010.(erv, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Wiley Y. Daniel Civil Action No. 09-cv-00377-WYD-CBS ELDEN KANZLER, Plaintiff, v. DR. MCLAUGHLIN, and DR. DEGROOTE, Defendants. ORDER ADOPTING AND AFFIRMING MAGISTRATE JUDGE'S RECOMMENDATION THIS MATTER is before the Court in connection with Defendant DeGroote's Motion to Dismiss Second Amended Complaint filed September 22, 2009 [#33]. This motion was referred to Magistrate Judge Shaffer for a recommendation by memorandum dated September 22, 2009 [#34]. A Recommendation of United States Magistrate Judge issued on April 14, 2010 [#38], and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Magistrate Judge Shaffer recommends therein that Defendant's motion be granted, and that Defendant DeGroote be dismissed from this civil action based on Plaintiff's failure to state a claim upon which relief can be granted. Magistrate Judge Shaffer found that Plaintiff failed to plead sufficient facts to demonstrate that Defendant DeGroote had any personal participation in the alleged violation of Plaintiff's Eight -1-

Amendment rights; that Plaintiff's allegations of a lack of medical treatment or improper medical treatment were insufficient to state a claim under the Eight Amendment; and that Defendant DeGroote is entitled to qualified immunity from Plaintiff's § 1983 claim. Recommendation at 5-13, 16. He further recommends that Defendant McLaughlin be dismissed from this civil action for failure to effect service within the time limit of Fed. R. Civ. P. 4(m) and pursuant to D.C. COLO. LCivR 41.1 for failure to prosecute. Recommendation at 14-16. Magistrate Judge Shaffer advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. Recommendation at 17. 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

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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on the face of the record. I agree with Magistrate Judge Shaffer that Plaintiff's claims against Defendants DeGroote and McLaughlin should be dismissed. Accordingly, it is hereby ORDERED that the Recommendation of United States Magistrate Judge dated April 14, 2010 [#38], is AFFIRMED and ADOPTED. In accordance therewith, it is ORDERED that Defendant DeGroote's Motion to Dismiss Second Amended Complaint filed September 22, 2009 [#33] is GRANTED, and this action is DISMISSED. Dated: May 13, 2010 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Chief United States District Judge

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