Potter v. Zavaras

Filing 112

ORDER ADOPTING AND AFFIRMING RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE. It is ORDERED that the Recommendation of the United States Magistrate Judge 105 is AFFIRMED and ADOPTED. It is further ORDERED that defendant Cunninghams Motion to Dismiss 79 is GRANTED, and that defendant Caldwells Motion for Judgment on the Pleadings 88 is GRANTED. All claims against defendants Cunningham and Caldwell are dismissed with prejudice. By Judge R. Brooke Jackson on 3/29/2012.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson
Civil Action No. 10-cv-0929-RBJ-KMT
JEREMY K. POTTER,
Plaintiff,
v.
C/O JOHN DOE #1, of DRDC, in his personal capacity,
C/O JOHN DOE #2, of DRDC, in his personal capacity,
Nurse JANE DOE, of DRDC, in her personal capacity,
Sergeant JOHN DOE, of DRDC, in his personal capacity,
Lieutenant JOHN DOE, of DRDC, in his personal capacity,
Nurse APRIL D. CALDWELL, of CMRC, in her personal and/or official capacity, and
Dentist CUNNINGHAM, of CMRC, in his personal and/or official capacity,
Defendants.

ORDER ADOPTING AND AFFIRMING RECOMMENDATIONS
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the December 21, 2011 Recommendation of
Magistrate Judge Kathleen M. Tafoya [Doc. #105]. Judge Tafoya recommended that defendant
Cunningham’s Motion to Dismiss [#79] be granted, and that defendant April Caldwell’s Motion
for Judgment on the Pleadings [#88] also be granted. 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. On January 3, 2012
the Court received Mr. Potter’s copy of the recommendation marked as “mail returned as
undeliverable.” [#106]. Concerned that Mr. Potter had not received the recommendation, and

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that he may have moved from Bent County Correctional Facility, the Court sent the documents
to a new address found in the state inmate locator, the CDOC Buena Vista facility. [#109]. On
February 6, 2012 Mr. Potter filed a motion for extension of 45 days in which to file objections.
[#110]. The Court granted the motion and extended the deadline to March 26, 2012. [#111]. In
doing so the Court indicated that “by March 26, 2012 Mr. Potter will have had ample time, no
matter when service was effected, to prepare a response. Therefore, no further extension will be
granted.”
Mr. Potter did not file an objection. “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).
The Court has reviewed all the relevant pleadings concerning defendant Cunningham’s
Motion to Dismiss and defendant Caldwell’s Motion for Judgment on the Pleadings. The Court
has also reviewed the magistrate judge’s Recommendation. Based on that review, the Court
concludes that the Magistrate Judge’s thorough and comprehensive analyses and
recommendations are well supported, 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.
Accordingly, it is ORDERED that the Recommendation of the United States Magistrate
Judge [#105] is AFFIRMED and ADOPTED. It is further ORDERED that defendant
Cunningham’s Motion to Dismiss [#79] is GRANTED, and that defendant Caldwell’s Motion
for Judgment on the Pleadings [#88] is GRANTED. All claims against defendants Cunningham
and Caldwell are dismissed with prejudice.

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DATED this 29th day of March, 2012.

BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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