Carter v. Allen

Filing 33

ORDER granting 21 Motion to Dismiss for Lack of Jurisdiction; adopting Report and Recommendations re 31 Report and Recommendations. Plaintiff's due process claim is STAYED pursuant to the Younger doctrine until the state proceeding is final. The case be ADMINISTRATIVELY CLOSED pending a showing of good cause to reopen by Plaintiff after the state proceeding is final. By Judge Christine M. Arguello on 1/6/2012.(jjpsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-01149-CMA-BNB
JOSEPH SCOTT CARTER,
Plaintiff,
v.
DOCTOR SHARON ALLEN, M.D.,
Defendant.

ORDER ADOPTING AND AFFIRMING DECEMBER 14, 2011 RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the December 14, 2011 Recommendation
(Doc. # 31) by United States Magistrate Judge Boyd N. Boland that Defendant’s Motion
to Dismiss Pursuant to the Younger Doctrine, Fed. R. Civ. P. 12(b)(1), Immunity, and
Fed. R. Civ. P. 12(b)(6) (Doc. # 21) be granted as specified. Specifically, the Magistrate
Judge recommended that Plaintiff’s medical malpractice and legal access claims be
dismissed with prejudice, the due process claim be stayed pursuant to Younger v.
Harris, 401 U.S. 37 (1971), and that the case be administratively closed pending a
showing of good cause to reopen by Plaintiff. (Doc. # 31 at 12.) The Recommendation
is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P.
72(b).
The Magistrate Judge’s Recommendation advised the parties that specific written
objections were due within fourteen (14) days after being served with a copy of the

Recommendation. (Doc. # 102 at 16-17.) The Magistrate Judge also notified the
parties that failure to file objections to the Recommendation waives de novo review by
this Court as well as appellate review in the Tenth Circuit. Although the Recommendation was mailed to Plaintiff’s address of record, it was returned as undeliverable on
January 3, 2012. Under the Local Rules, a party must file notice within five days after
any change of address. See D.C.COLO.LCivR 10.1.M. As a result of Plaintiff’s
apparent failure to promptly notify this Court of his change of address, he has failed
to submit timely objections to the Magistrate Judge’s Recommendation.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”). However, because Plaintiff did not receive a
copy of the Recommendation, the Court will nonetheless review it de novo.
The Court has carefully reviewed all the relevant pleadings, including
Defendant’s Motion to Dismiss, Plaintiff’s Response, Defendant’s Reply, and the
Magistrate Judge’s Recommendation. Based on the Court’s de novo review of this
matter, the Court concludes that the Magistrate Judge’s thorough and comprehensive

1

The Tenth Circuit has observed that it is “unreasonable to require courts to wade through a
party’s file in order to determine the most recent or most likely address at which to contact the
party.” Theede v. United States Dep’t of Labor, 172 F.3d 1262, 1267 (10th Cir. 1999). This is
because a party is “far better situated to know of any errors in their address information.” Id. As
the Recommendation was mailed to Plaintiff’s last known address on file, he bears the burden
of filing notice of any address change. See id.

2

analyses and recommendations regarding Defendant’s Motion to Dismiss are correct.
Therefore, the Court hereby ADOPTS the December 14, 2011 Recommendation of
the United States Magistrate Judge (Doc. # 31) as the findings and conclusions of this
Court.
Accordingly, IT IS ORDERED that Defendant’s “Motion to Dismiss Pursuant to
the Younger Doctrine, Fed. R. Civ. P. 12(b)(1), Immunity, and Fed. R. Civ. P. 12(b)(6)”
(Doc. # 21) is GRANTED as follows:
1.

Plaintiff’s medical malpractice and legal access claims are DISMISSED
WITH PREJUDICE;

2.

Plaintiff’s due process claim is STAYED pursuant to the Younger doctrine
until the state proceeding is final; and

3.

The case be ADMINISTRATIVELY CLOSED pending a showing of good
cause to reopen by Plaintiff after the state proceeding is final.

DATED: January

06

, 2012
BY THE COURT:

________________________________
CHRISTINE M. ARGUELLO
United States District Judge

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