Oakley v. Zararas et al

Filing 136

ORDER that the Recommendation of the United States Magistrate Judge Doc. # 127 is AFFIRMED and ADOPTED; It is FURTHER ORDERED that Defendants Motion to Dismiss Second Amended Complaint Doc. # 113 , be DENIED WITHOUT PREJUDICE. See Doc. # 127 . It is FURTHER ORDERED that Defendant Tranis Motion for Extension of Time to File Objections Doc. # 134 , be DENIED without prejudice. Within 30 days of the establishment of the Estate of Tom Clements in state court, the Estate may file a motion for reconsideration of this Order setting forth any objections to Judge Watanabes report and recommendation that relate to the claims against Mr. Clements, in his individual capacity, by Judge Christine M. Arguello on 8/15/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 10-cv-03052-CMA-MJW
JACOB DANIEL OAKLEY,
Plaintiff,
v.
THE ESTATE OF TOM CLEMENTS, on behalf of
TOM CLEMENTS, deceased, in his official and individual capacities
as the Executive Director of the Colorado Department of Corrections; and
TRAVIS TRANI, in his official capacity as the Warden of the Colorado
State Penitentiary and the Centennial Correctional Facility,
Defendants.

ORDER AFFIRMING July 18, 2013 RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the July 18, 2013 Recommendation by United
States Magistrate Judge Michael J. Watanabe that Defendants’ Motion to Dismiss
Second Amended Complaint (Doc. # 113) be denied. (Doc. # 127.) 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. (Doc.

# 127 at 22.) Despite this advisement, no objections to Magistrate Judge Watanabe’s
Recommendation were filed by either party. 1
“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) (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.”).
The Court has reviewed all the relevant pleadings concerning Defendants’ Motions
to Dismiss and the Recommendation. Based on this review, the Court concludes
that Magistrate Judge Watanabe’s thorough and comprehensive analyses and
recommendations are correct 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 Magistrate Judge Watanabe as the findings and conclusions of
this Court.
Accordingly, it is ORDERED that the Recommendation of the United States
Magistrate Judge (Doc. # 127) is AFFIRMED and ADOPTED. It is

1

On the day objections were due, Defendant Trani, through the Colorado Attorney General, filed
a motion to dismiss the claims against Defendant Clements in his individual capacity, and in the
alternative, requested an extension of time to file objections that now-deceased Defendant
Clements may have. (Doc. # 128.) The Court denied the motion to dismiss, but gave the Estate
of Tom Clements seven days to file objections. (Doc. # 133.) Defendant Trani again filed a
motion requesting an additional extension of time, (Doc. 134), which motion the Court addresses
at the end of this Order.

2

FURTHER ORDERED that Defendants Motion to Dismiss Second Amended
Complaint (Doc. # 113), be DENIED WITHOUT PREJUDICE. (See Doc. # 127.)

It is

FURTHER ORDERED that Defendant Trani’s Motion for Extension of Time to
File Objections (Doc. # 134), be DENIED without prejudice. Within 30 days of the
establishment of the Estate of Tom Clements in state court, the Estate may file a motion
for reconsideration of this Order setting forth any objections to Judge Watanabe’s report
and recommendation that relate to the claims against Mr. Clements, in his individual
capacity.
DATED: August

15

, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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