Mercer v. Peterson et al

Filing 123

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of the United States Magistrate Judge Tafoya 107 is AFFIRMED AND ADOPTED. ORDERED that Defendants Motion for Summary Judgment 83 is GR ANTED in part and DENIED in part. The motion is DENIED with respect to Plaintiffs First Claim for Relief for excessive force against Defendants Peterson and Moore. It is GRANTED in all other respects as to all other claims and defenses, and Defendants Frangis and Elbert County are DISMISSED WITH PREJUDICE. ORDERED that the caption of this case shall be amended to delete Defendant Elbert County Sheriffs Office because no surviving claims exist by Chief Judge Wiley Y. Daniel on 06/30/11.(jjh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-00654-WYD-KMT
ROBERT JAMES MERCER,
Plaintiff,
v.
ROBERT PETERSON, in his individual and official capacities and,
MICHAEL MOORE, in his individual and official capacities
WILLIAM FRANGIS,
ELBERT COUNTY SHERIFF’S DEPARTMENT, and
COUNTY OF ELBERT, COLORADO, in their official capacities
Defendants.
_____________________________________________________________________
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
THIS MATTER is before the Court on Defendants’ Motion for Summary
Judgment [ECF No. 83], filed December 8, 2010, and Defendants’ Errata Regarding
Motion for Summary Judgment [ECF No. 85], filed December 9, 2010. The motion was
referred to Magistrate Judge Kathleen M. Tafoya for a Recommendation. Magistrate
Judge Tafoya issued her Recommendation on April 6, 2011 [ECF No. 107], which is
incorporated herein by reference. See 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b),
D.C.COLO.LCivR. 72.1.
Magistrate Judge Tafoya recommends that Defendants’ Motion for Summary
Judgment be granted in part and denied in part. Specifically, Magistrate Judge Tafoya
recommends that Defendants’ motion for summary judgment be denied with respect to

Plaintiff’s First Claim for Relief against Defendants Robert Peterson and Michael Moore
for use of excessive force, and that it be granted in all other respects, as to all remaining
claims and defenses, and that Defendants Frangis and Elbert County be dismissed.
She further recommends that the caption of this case be amended to delete Defendant
Elbert County Sheriff’s Department.
Pursuant to Fed. R. Civ. P. 72(b), Magistrate Judge Tafoya advised the parties
that they had fourteen days to serve and file specific written objections to her
Recommendation. No objections have been filed. Given that no objections have 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, 106 S.Ct. 466, 88 L.Ed.2d 435 (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”). 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
Having reviewed the Recommendation, I am satisfied that there is no clear error
on the face of the record. I find that Magistrate Judge Tafoya’s Recommendation is
thorough, well reasoned, and sound. I agree with Magistrate Judge Tafoya that the
pending motion should be granted in part and denied in part for the reasons stated in

1

I note that 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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both the Recommendation and this Order.
Accordingly, it is
ORDERED that the Recommendation of the United States Magistrate Judge
Tafoya [ECF No. 107] is AFFIRMED AND ADOPTED.
In accordance therewith, it is
FURTHER ORDERED that Defendants’ Motion for Summary Judgment [ECF No.
83] is GRANTED in part and DENIED in part. The motion is DENIED with respect to
Plaintiff’s First Claim for Relief for excessive force against Defendants Peterson and
Moore. It is GRANTED in all other respects as to all other claims and defenses, and
Defendants Frangis and Elbert County are DISMISSED WITH PREJUDICE. It is
FURTHER ORDERED that the caption of this case shall be amended to delete
Defendant Elbert County Sheriff’s Office because no surviving claims exist.
Dated: June 30, 2011

BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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