Yarberry v. Vilsack

Filing 43

ORDER. Defendants Motion to Dismiss 23 is GRANTED and Plaintiffs Amended Complaint is DISMISSED WITHOUT PREJUDICE and Plaintiffs Motion to Amend 36 is DENIED. By Judge Lewis T. Babcock on 7/27/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 10-cv-02715-LTB-KLM
JEFFREY L. YARBERRY,
Plaintiff,
v.
TOM J. VILSACK, Secretary, US Department of Agriculture,
Defendant.
________________________________________________________________________
ORDER
________________________________________________________________________

This case is before me on the Recommendation of the Magistrate Judge that
Defendant’s Motion to Dismiss be granted and Plaintiff’s Amended Complaint be dismissed
without prejudice. The Magistrate Judge further recommends that Plaintiff’s Motion to
Amend be denied.
The Plaintiff has filed timely specific written objections to the Magistrate Judge’s
recommendations. The Defendant has filed a timely written reply to the objections. By
Minute Order dated June 21, 2011, I afforded Defendant up to and including July 26, 2011,
to file a reply. Plaintiff has not filed a timely reply to the Defendant’s response. I review the
Magistrate Judge’s Recommendation de novo in light of the file and record in this case.
On de novo review I conclude that the Recommendation is correct.
Although the Motion to Dismiss is filed pursuant to Fed. R. Civ. P. 12(b)(1) and
12(b)(6), the Magistrate Judge’s Recommendation turns upon a factual attack analysis that
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this Court has no jurisdiction because of the Plaintiff’s failure to exhaust administrative
remedies. Specifically, the Magistrate Judge determined that at the conclusion of the
Plaintiff’s EEOC counseling process, Plaintiff was informed that he needed to file a formal
complaint if he wished to pursue his concerns further. Letter to Plaintiff dated November
16, 2007 (Doc 23-22). It is undisputed that Plaintiff never filed a formal complaint with his
employer, the Department of Agriculture.
Plaintiff for the first time in his objections to the Magistrate Judge’s Recommendation
argues that he should be excused for exhausting his EEOC administrative remedies prior
to filing this action because he never received a “notice of right to file a formal complaint.”
But in this circuit, theories raised for the first time in objections to a Magistrate Judge’s
Recommendation are deemed waived. U.S. v. Garfinkel, 261 F.3d 1030, 1031 (10th Cir.
2001). By failing to present this issue to the Magistrate Judge before issuance of her
recommendations, Plaintiff has waived this pivotal objection.
Accordingly
IT IS ORDERED that Defendant’s Motion to Dismiss (Doc 23) is GRANTED and
Plaintiff’s Amended Complaint is DISMISSED WITHOUT PREJUDICE and Plaintiff’s Motion
to Amend (Doc 36) is DENIED.

BY THE COURT:

s/Lewis T. Babcock
Lewis T. Babcock, Judge
DATED: July 27, 2011

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