Handy v. Diggins et al

Filing 234

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge 222 is AFFIRMED AND ADOPTED. ORDERED that the Panel of Islamic Clerks is DISMISSED WITHOUT PREJUDICE from this case, and shall hereafter be taken off the caption by Chief Judge Wiley Y. Daniel on 10/09/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 10-cv-02022-WYD-KMT
WYATT T. HANDY, JR.,
Plaintiff,
v.
CHIEF DIGGINS, individual & official capacity,
MAJOR V. CONNORS, individual & official capacity,
CHAPLAIN SCOTT, individual & official capacity,
MR. BURRIS, individual & official capacity, and
PANEL OF ISLAMIC CLERICS, individual & official capacity,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with the Recommendation of
United States Magistrate Judge issued on September 5, 2012. It is recommended
therein by Magistrate Judge Tafoya that the case be dismissed without prejudice
pursuant to Fed. R. Civ. P. 4(m) against the Panel of Islamic Clerks for lack of service.
(Recommendation at 2.)
The Recommendation was issued after Plaintiff’s failure to respond to the Court’s
Order to Show Cause entered July 16, 2012. That Order asked Plaintiff to show cause
why his claims against the Panel of Islamic Clerics should not be dismissed without
prejudice pursuant to Rule 4(m) for lack of service. Plaintiff failed to respond to the
Order to Show Cause, and the Panel of Islamic Clerics have yet to be served despite

the fact that more than 120 days have passed since Plaintiff’s Third Amended Prisoner
Complaint was filed in this matter. (See Recommendation at 1-2.) Further, Plaintiff has
failed to provide the Court with the proper information to locate the Panel of Islamic
Clerics so that the Court can issue and serve process on his behalf. See 28 U.S.C. §
1915(d).
Magistrate Judge Tafoya advised the parties that written objections were due
within fourteen (14) days after service of the Recommendation, and that the objections
must be timely and specific in order to preserve an issue for de novo review.
(Recommendation at 2-3.) Despite this advisement, and despite the fact that the
Clerk’s Office of this Court mailed another copy of the Recommendation to Plaintiff at
his request on September 19, 2012, 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

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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the record. I agree with Magistrate Judge Tafoya that dismissal without prejudice is
proper as to Defendant the Panel of Islamic Clerks pursuant to Fed. R. Civ. P. 4(m) for
lack of service. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
September 5, 2012 (ECF No. 222) is AFFIRMED AND ADOPTED. In accordance
therewith, it is
ORDERED that the Panel of Islamic Clerks is DISMISSED WITHOUT
PREJUDICE from this case, and shall hereafter be taken off the caption.
Dated: October 9, 2012
BY THE COURT:

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

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