Handy v. Cummings et al

Filing 116

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge Tafoya 106 is AFFIRMED and ADOPTED. ORDERED that Plaintiff's "Motion for Court to Order Jail Officials to Allow the Plaintiff to Have His Legal Materials or in the Alternative Appoint Counsel to Represent Him at the Defendants [sic] Expense" 37 is DENIED AS MOOT by Chief Judge Wiley Y. Daniel on 12/12/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No.

11-cv-00581-WYD-KMT

WYATT T. HANDY JR.,
Plaintiff,
v.
SGT. CUMMINGS, Individual and Official Capacity,
DEP. WENDELBURG, Individually,
DEP. THAO, Individually,
DEP. LIGON, Individually,
DEP. ELLEDGE, Individually,
DEP. GIRRARD, Individually,
MRS. GRETCHEN, Individual Capacity,
WOOD, Official Capacity,
MRS. MOLLENDOR, Individually,
DEP. LITWILER Individually,
NANCY, Individual and Official Capacity,
DEP. MORRISSON, Individual,
DEP. KRAUS, Individual,
DEP. GALLEGOS, Individual,
DEP. HUNT, Individual, and
SGT. CLARK, Individual and Official Capacity,
SGT. DOIZAKI, individual & official capacity,
DEP. EMERSON, individual,
DEP KLEINHEKSEL, individual,
SHERIFF GRAYSON ROBINSON, individual & official capacity,
CAPT. SAUTER, individual & official capacity,
LT. WHITIKER, individual & official capacity,
SGT. RANKIN, individual & official capacity,
DEP. FREEMAN, individual,
DEP. LONGFELLOW, individual, and
DEP. HAMM, individual,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on Plaintiff’s “Motion for Court to Order Jail
Officials to Allow the Plaintiff to Have His Legal Materials or in the Alternative Appoint
Counsel to Represent Him at the Defendants [sic] Expense” (Doc. No. 37), filed May 16,
2011. The motion was referred to Magistrate Judge Kathleen M. Tafoya for a
Recommendation by Order of Reference dated April 22, 2011. Magistrate Judge
Tafoya issued a Recommendation on September 12, 2011. Specifically, Magistrate
Judge Tafoya recommends that the pending motion be granted and that Plaintiff’s Title
VII termination claim and his state law claim for violation of the Colorado
Anti-Discrimination Act be dismissed denied as moot in light of Plaintiff’s release from
custody. (ECF No. 106, Recommendation at 2-5.) The Recommendation is
incorporated herein by reference. See 28 U.S.C. ' 636(b)(1)(B), Fed. R. Civ. P. 72(b).
Magistrate Judge Tafoya advised the parties that written objections were due
within fourteen (14) days after service of a copy of the Recommendation.
(Recommendation at 5-6.) Despite this advisement, no objections were filed to the
Recommendation.1 No objections having been filed, I am vested with discretion to
review the Recommendation Aunder 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
1

I note that at some point during the service of the Recommendation on the Plaintiff,
Plaintiff was released from custody. On September 22, 2011, Plaintiff notified the Court of his
address change. Thus, on October 13, 2011, the Clerk of the Court issued a Certificate of
Service by Mail of the Recommendation at Plaintiff=s new address. Accordingly, I calculated
the 14-day period for filing written objections to the Recommendation from the date the
Certificate of Service was issued, which was October 28, 2011. No objections have been filed
to date.

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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."2 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 the record. I find that Magistrate Judge Tafoya=s Recommendation is
thorough, well reasoned and sound. I agree with Magistrate Judge Tafoya that the
pending motion should be denied as moot for the reasons stated in both the
Recommendation and this Order.
Based on the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge Tafoya
(ECF No. 106) is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Plaintiff’s “Motion for Court to Order Jail Officials to
Allow the Plaintiff to Have His Legal Materials or in the Alternative Appoint Counsel to
Represent Him at the Defendants [sic] Expense” (Doc. No. 37) is DENIED AS MOOT.
Dated: December 12, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge
2

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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