Darris v. Bertolas et al

Filing 42

ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION. Plaintiffs request in his letter filed on March 25, 2010 37 that Magistrate Judge Tafoya be recused or, in the alternative, that this action be dismissed without prejudice is denied. The Recommendation of United States Magistrate Judge 38 is ACCEPTED. This matter, and all claims asserted therein, is dismissed with prejudice. By Judge Philip A. Brimmer on 05/10/2010.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer Civil Action No. 09-cv-00571-PAB-KMT STEPHAN DARRIS, Plaintiff, v. JAMES BERTOLAS, parole officer, and ISMAEL SANDOVOL, parole officer, Defendants. _____________________________________________________________________ ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION _____________________________________________________________________ This matter is before the Court on the Recommendation of United States Magistrate Judge Kathleen M. Tafoya filed on April 5, 2010 [Docket No. 38]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. See also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on April 5, 2010. On March 25, 2010, plaintiff filed a letter directed to the district judge [Docket No. 37]. The letter does not object to the Recommendation, but rather asks that Magistrate Judge Tafoya be recused from his case or that this matter be dismissed without prejudice in order for him to hire an attorney upon his release "within 90 days." Plaintiff, however, does not state any basis for Magistrate Judge Tafoya's recusal from this case. As a result, that request is denied. 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. Plaintiff's request in his letter filed on March 25, 2010 [Docket No. 37] that Magistrate Judge Tafoya be recused or, in the alternative, that this action be dismissed without prejudice is denied. 2. The Recommendation of United States Magistrate Judge [Docket No. 38] is ACCEPTED. 3. This matter, and all claims asserted therein, is dismissed with prejudice.

DATED May 10, 2010. 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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