Allen v. Ferrel et al

Filing 106

ORDER Adopting and Affirming 101 Report and Recommendations: 105 Objections are overruled, and 72 Motion for Summary Judgment is granted in part and denied in part, by Judge Christine M. Arguello on 3/25/13.(dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello Civil Action No. 11-cv-01424-CMA-MJW SHAWN D. ALLEN, Plaintiff, v. K. FERRELL, E. SNEAD, J. LIBEL, and R. KORTH, Defendants. ORDER ADOPTING AND AFFIRMING FEBRUARY 13, 2013 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This case was referred to United States Magistrate Judge Michael J. Watanabe pursuant to 28 U.S.C. ' 636 and Fed. R. Civ. P. 72. (Doc. # 14.) On February 13, 2013, the Magistrate Judge issued a Recommendation, advising the Court to grant in part and deny in part Defendants’ Motion for Summary Judgment (Doc. # 72). (Doc. # 101.) The Recommendation stated that “the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections . . . with the District Judge assigned to the case.” (Id. at 26.) It further noted that “[a] party’s failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge . . . .” (Id. at 26-27.) Following the Recommendation, Plaintiff moved for, and the Court granted him, an extension of time to file objections, which he did on March 8, 2013. (See Doc. ## 103-05.) Defendants did not file any objections. When a magistrate judge issues a recommendation on a dispositive matter, Fed. R. Civ. P. 72(b)(3) requires that the district judge Adetermine de novo any part of the magistrate judge=s [recommended] disposition that has been properly objected to.@ In conducting its review, A[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.@ Id. Accordingly, the Court has conducted a de novo review of those parts of Judge Watanabe’s Recommendation to which Plaintiff property objected,1 including carefully reviewing all relevant pleadings, the Recommendation, and Plaintiff’s objections thereto. Based on this de novo review, the Court finds Judge Watanabe’s Recommendation to be correct, notwithstanding Plaintiff’s objections. Accordingly, it is ORDERED that: 1. The February 13, 2013 Recommendation of the United States Magistrate Judge (Doc. # 101) is AFFIRMED and ADOPTED as an Order of this Court. 2. Plaintiff’s objections (Doc. # 105) are OVERRULED. 1 All other aspects of the Recommendation have been reviewed for clear error. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (observing 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 identified no such error. 2 3. Pursuant to the Recommendation, Defendants’ Motion for Summary Judgment (Doc. # 72) is DENIED IN PART with respect to Plaintiff’s Eighth Amendment claim against Defendant Snead regarding the cleanliness of Plaintiff’s Mental Health Watch cell, including the lack of water and the ability to flush the toilet; the motion is GRANTED IN PART in all other respects. DATED: March 25 , 2013 BY THE COURT: _______________________________ CHRISTINE M. ARGUELLO United States District Judge 3

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