Stacker v. Holder et al

Filing 52

ORDER. The 50 Recommendation for Dismissal is accepted. This case is dismissed with prejudice. Judgment shall enter in favor of defendants and against plaintiff, by Judge Philip A. Brimmer on 2/25/11.(mnf, )

-MEH Stacker v. Holder et al

Doc. 52

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Philip A. Brimmer

Civil Action No. 10-cv-01150-PAB-MEH JEFFREY STACKER, Plaintiff, v. J. M. WILNER, Warden, FCI Florence, SCHOFIELD, Food Service Administrator, FCI Florence, CONDIFF, Food Service Supervisor, FCI Florence, M.D. SANTINI, Contracted at FCI Florence, P.A. RITTER, Medical Provider, FCI Florence, and P.A. VINEYARD, Medical Service Provider, Defendants.

ORDER

This matter comes before the Court on the Recommendation for Dismissal (the "Recommendation") [Docket No. 50] filed by United States Magistrate Judge Michael E. Hegarty on February 7, 2011. Magistrate Judge Hegarty recommends that plaintiff's case be dismissed with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 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 February 7, 2011, and no party has objected to the Recommendation.1

The Clerk of the Court mailed plaintiff a copy of the Recommendation at the address he provided in July 2010 in a notice of change of address. See Docket No. 9. The Recommendation was returned as undeliverable. See Docket No. 51. The

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Dockets.Justia.com

In the absence of an objection, the district court may review a magistrate judge's recommendation under any standard it deems appropriate. See 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."2 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 that the Recommendation for Dismissal [Docket No. 50] is ACCEPTED. It is further ORDERED that this case is dismissed with prejudice. Judgment shall enter in favor of defendants and against plaintiff.

Recommendation recounts efforts to reach plaintiff by telephone and to determine whether his address had changed. See Docket No. 50 at 2-3; see Docket No. 45. Plaintiff's failure to update his address and telephone number does not excuse any failure to object or toll the period in which to do so. See D.C.COLO.LCivR 10.1M ("Within five days after any change of address . . . or telephone number of any . . . pro se party, notice of the new address . . . or telephone number shall be filed."). 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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DATED February 25, 2011. BY THE COURT:

s/Philip A. Brimmer PHILIP A. BRIMMER United States District Judge

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