Campbell v. Milyard et al

Filing 178

ORDER AFFIRMED AND ADOPTED 170 Report and Recommendations of the United States Magistrate Judge; Granting 140 Defendant Pohlmans Motion for Summary Judgment and all claims asserted by Plaintiff that pertain to Defendant Pohlman are DISMISSED WITH PREJUDICE. Plaintiff has not shown good cause for his failure to timely serve Defendant Webster. His claims, as they pertain to Defendant Webster are, therefore, DISMISSED WITHOUT PREJUDICE.; by Judge Christine M. Arguello on 5/9/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 09-cv-01041-CMA-KLM
EARL WILLIAM CAMPBELL, JR.,
Plaintiff,
v.
DR. FLOYD POHLMAN, M.D.,
DR. GAGAN SINGH, M.D.,
DR. PAULA FRANTZ, M.D.,
KATHERN RITTENHOUSE, P.A.C.,
BRIAN WEBSTER, P.A.C.,
JOANN STOCK, P.A.C., and
SERGEANT JOHNSON, LU-3,
Defendants.

ORDER ADOPTING AND AFFIRMING APRIL 14, 2011 RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the April 14, 2011 Recommendations by
Magistrate Judge Kristen L. Mix that Defendant Pohlman’s Motion for Summary
Judgment, (Doc. # 140), be granted and that summary judgment be entered in favor of
Defendant Pohlman as to all claims asserted by Plaintiff against Defendant Pohlman in
the Amended Complaint. (Doc. # 123.) The Magistrate Judge also recommended that
Plaintiff’s claims against Defendant Webster be dismissed without prejudice pursuant to

Fed. R. Civ. P. 4(m).1 The Recommendation is incorporated herein by reference. See
28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b).
The Recommendation advised the parties that specific written objections were
due within fourteen (14) days after being served with a copy of the Recommendation.
(Doc. # 28 at 20.) Despite this advisement, no objections to the Magistrate Judge Mix’s
Recommendation were filed by either party. “In the absence of timely objection, the
district court may review a magistrate . . . [judge’s] report under any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing 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”).
The Court has reviewed all the relevant pleadings concerning Defendant
Pohlman’s Motion for Summary Judgment and the Recommendation. Based on this
review, the Court concludes that the Magistrate Judge’s thorough and comprehensive
analyses and recommendations are correct and that “there is no clear error on the face
of the record.” Fed. R. Civ. P. 72 advisory committee’s note. Therefore, the Court
ADOPTS the Recommendation of the United States Magistrate Judge as the findings
and conclusions of this Court.

1

On January 11, 2011, the Magistrate Judge issued an Order to Show Cause (Doc.
# 148) as to why Plaintiff had failed to serve Defendant Webster. Plaintiff did not respond
to that Order. Defendant Webster has not been served within 120 days of the Amended
Complaint and Plaintiff has not shown good cause for that failure.

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Accordingly, it is ORDERED that the Recommendation of the United States
Magistrate Judge (Doc. # 31) is AFFIRMED and ADOPTED. It is further ORDERED
that Defendant Pohlman’s Motion for Summary Judgment (Doc. # 140) be GRANTED
and all claims asserted by Plaintiff that pertain to Defendant Pohlman are DISMISSED
WITH PREJUDICE. Plaintiff has not shown good cause for his failure to timely serve
Defendant Webster. His claims, as they pertain to Defendant Webster are, therefore,
DISMISSED WITHOUT PREJUDICE.
DATED: May

09

, 2011
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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