Allen v. Allen et al

Filing 81

ORDER ADOPTING AND AFFIRMING 60 Report and Recommendations of United States Magistrate Judge; Overruled OBJECTION/Appeal of Magistrate Judge Decision to District Court re 51 Order on Motion for Order by Plaintiff Shawn D. Allen. granting 72 Motion to Withdraw Document 54 ; withdrawing 48 Motion for TRO; by Judge Christine M. Arguello on 9/8/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-02207-CMA-MJW
SHAWN D. ALLEN,
Plaintiff,
v.
N. ALLEN,
C. FLORY,
A. COSNER,
K. NORDELL,
A. MEDINA,
K. SOKOL, and
C. TUTTLE,
Defendants.

ORDER AFFIRMING JUNE 2, 2011 ORDER OF UNITED STATES MAGISTRATE
JUDGE (DOC. # 51), ADOPTING AND AFFIRMING JULY 13, 2011
RECOMMENDATION OF MAGISTRATE JUDGE (DOC. # 60), AND GRANTING
PLAINTIFF’S MOTION TO WITHDRAW DOCUMENT (DOC. # 72)

This case was referred to United States Magistrate Judge Michael J. Watanabe
pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72. (Doc. # 7.) The Magistrate
Judge has issued two Recommendations and one Minute Order concerning three
motions filed by pro se Plaintiff.
The Magistrate Judge issued his first Recommendation on June 2, 2011 (Doc.
# 50), in which he recommended that Plaintiff’s Motion for Temporary Restraining Order
(“TRO”) be denied. Plaintiff filed his objections to that Recommendation on June 16,
2011. Plaintiff has since filed a Motion to Withdraw his Motion for TRO. (Doc. # 72.)

Thus, the Court GRANTS the Motion to Withdraw (Doc. # 72) and DENIES AS MOOT
Plaintiff’s Motion for TRO (Doc. # 48).
The Magistrate Judge issued another Recommendation on July 13, 2011 (Doc.
# 60), in which he recommended that Plaintiff’s Motion to Amend Claim Five and Add
a Defendant (Doc. # 55) be denied. Plaintiff filed timely objections on July 22, 2011.
(Doc. # 66.) In light of these objections, the Court has conducted the requisite de novo
review of the issues, the Recommendation, and Plaintiff’s objections.
Pursuant to the Scheduling Order (Doc. # 37), the deadline for amendment of
pleadings was May 16, 2011. Plaintiff did not file his Motion to Amend until June 24,
2011.1 Thus, Plaintiff’s Motion was untimely. The Federal Rules of Civil Procedure allow
for modification of a Scheduling Order “only for good cause and with the judge’s
consent.” Fed. R. Civ. P. 16(b). In his Recommendation, the Magistrate Judge found
that Plaintiff had failed to demonstrate “good cause” for his failure to abide by the
Scheduling Order. Based on its de novo review, the Court agrees with the Magistrate
Judge that Plaintiff did not demonstrate “good cause” under Fed. R. Civ. P. 16(b) for
seeking modification of the scheduling deadline, and Plaintiff fails to raise any new
issues of law or fact in his Objection that would alter this conclusion. Accordingly, the
Court ADOPTS the Recommendation of the Magistrate Judge (Doc. # 60) as the findings
and conclusions of this Court and it is ORDERED that Plaintiff’s Motion to Amend Claim
and Add a Defendant (Doc. # 55) is DENIED.
1

In his Motion, Plaintiff sought leave to amend his “Claim Five” to include a claim of
denial of access to the courts, and to add a defendant named “Filis” to the complaint.

2

Finally, the Magistrate Judge issued a Minute Order on June 2, 2011 (Doc. # 51),
in which he ordered that Plaintiff’s Motion to Be Provided a Copy of Plaintiff’s Complaint
(Doc. # 47) be denied. Plaintiff filed timely objections on June 16, 2011. (Doc. # 54.)
Because Plaintiff’s motion involves a nondispositive pretrial motion, Plaintiff must
demonstrate that the Magistrate Judge’s ruling was “clearly erroneous or . . . contrary
to law.” Fed. R. Civ. P. 72(a). “The clearly erroneous standard . . . requires that the
reviewing court affirm unless it ‘on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.’” Ocelot Oil Corp. v. Sparrow Indus., 847
F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S.
364, 395 (1948 ).
Having reviewed the objections, the Court finds that the Magistrate Judge’s
Minute Order (Doc. # 51) was not clearly erroneous or contrary to law. Accordingly,
Plaintiff’s objections (Doc. # 54) are OVERRULED and the Magistrate Judge’s Order
denying Plaintiff’s Motion to Be Provided a Copy of Plaintiff’s Complaint (Doc. # 47) is
AFFIRMED.
DATED: September

08 , 2011
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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