Ellsworth v. Balkin et al

Filing 97

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge Boland 96 is AFFIRMED and ADOPTED. ORDERED that Defendants Motion for Summary Judgment 89 , is GRANTE D. Judgment shall enter in favor of Defendant on Plaintiffs remaining claim, which will terminate the case. ORDERED that Plaintiffs Motion that Summary Judgment Judgment [sic] Against Plaintiff be Denied and Case be Allowed to Proceed to Trial or Alternately Summery [sic] Judgement [sic] for Plaintiff Be Granted 86 , is DENIED by Chief Judge Wiley Y. Daniel on 10/25/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No.

09-cv-02265-WYD-BNB

JOSEPH A. ELLSWORTH,
Plaintiff,
v.
PAT MONTEZ,
CHARLES OLIN,
A. ZAVARAS,
CATHY HOIST,
MARSHALL GRIFFITH,
PAULA FRANTZ, and
BURL McCULLAR,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with the Plaintiff’s Motion that
Summary Judgment Judgment [sic] Against Plaintiff be Denied and Case be Allowed to
Proceed to Trial or Alternately Summery [sic] Judgement [sic] for Plaintiff Be Granted
[ECF No. 86], filed August 8, 2011, and Defendant’s Motion for Summary Judgment [ECF
No. 89], filed August 12, 2011. Plaintiff’s motion was referred to United States
Magistrate Judge Boland for a recommendation by Order of Reference dated August 9,
2011 [ECF No. 87]. Defendant’s motion was also referred to United States Magistrate
Judge Boland for a recommendation by Order of Reference dated August 15, 2011 [ECF
No. 90]. Magistrate Judge Boland issued a Recommendation on October 3, 2011 [ECF
No. 96]. The Recommendation is incorporated herein by reference. See 28 U.S.C. §
636(b)(1), Fed. R. Civ. P. 72(b), D.C.COLO.LR. 72.1.
Magistrate Judge Boland advised the parties that written objections were due

within fourteen (14) days after service of a copy of the Recommendation.
(Recommendation at 14.) Despite this advisement, no objections were filed to the
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 on
the face of the record. I find that Magistrate Judge Boland’s Recommendation is
thorough, well-reasoned and sound. I agree with Magistrate Judge Boland that
Plaintiff’s pending motion [ECF No. 86], filed August 8, 2011 should be denied and
Defendant’s pending motion [ECF No. 89], filed August 12, 2011 should be granted for
the reasons stated in both the Recommendation and this Order. Based on the foregoing,
it is
ORDERED that the Recommendation of United States Magistrate Judge Boland
[ECF No. 96] is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Defendant’s Motion for Summary Judgment [ECF No.
89], filed August 12, 2011, is GRANTED. Judgment shall enter in favor of Defendant on

1

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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Plaintiff’s remaining claim, which will terminate the case. It is
FURTHER ORDERED that Plaintiff’s Motion that Summary Judgment Judgment
[sic] Against Plaintiff be Denied and Case be Allowed to Proceed to Trial or Alternately
Summery [sic] Judgement [sic] for Plaintiff Be Granted [ECF No. 86], filed August 8, 2011,
is DENIED.

Dated: October 25, 2011
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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