Johnson v. Heinis et al

Filing 111

ORDER The Magistrate Judges Recommendation ECF No. 102 is ADOPTED; Defendants Motion for Summary Judgment ECF No. 79 is GRANTED; Plaintiffs Motion for Continuance to Respond to Defendants Motion for Summary Judgment ECF No. 107 is DENIED; Plaintiffs claims in this case are DISMISSED WITHOUT PREJUDICE; The Clerk of the Court shall enter judgment in favor of Defendants; and All parties are to bear their own attorneys fees and costs, by Judge William J. Martinez on 5/1/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-03135-WJM-KLM
KEITH ALLEN JOHNSON,
Plaintiff,
v.
JEFFERY HEINIS, #06140,
CHRIS CAMERON, #87014, an
CHRISTOPHER BALES, #87014,
Defendant.

ORDER ADOPTING MARCH 28, 2013 RECOMMENDATION OF MAGISTRATE
JUDGE AND GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on the March 28, 2013 Recommendation of United
States Magistrate Judge Kristen L. Mix (the “Recommendation”) (ECF No. 102) that
Defendants’ Motion for Summary Judgment (ECF No. 79) be granted. 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 days after being served with a copy of the Recommendation. (ECF
No. 102 at 7-8.) Despite this advisement, no objections to the Magistrate Judge’s
Recommendation have to date been filed by either party. Plaintiff has filed a number of
motions since the Recommendation was issued, (see ECF Nos. 105, 107 & 108), but
none of these filings is a specific objection to any aspect of the Recommendation.
Therefore, the Court’s duty to review the issues de novo has not been triggered. See

U.S. v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059
(10th Cir. 1996) (stating that a party’s objections to magistrate judge’s recommendation
must be both timely and specific to trigger de novo review by district court).
One of the Motions filed by Plaintiff is a “Motion for Continuance to Respond to
Defendant’s Motion for Summary Judgment”. (ECF No. 107.) In this Motion, Plaintiff
asks for additional time to respond to the Motion for Summary Judgment pursuant to
Federal Rule of Civil Procedure 56(f)1. (ECF No. 107.) The Court can defer
consideration of a motion for summary judgment if it finds that the non-movant needs
additional time to obtain affidavits or declarations or to take discovery. See Fed. R. Civ.
P. 56(d). However, this rule only applies where some additional factual development is
necessary to rebut the arguments raised in the motion. Here, the basis for Defendants’
Motion for Summary Judgment—as well as the Magistrate Judge’s Recommendation
that the Motion be granted—is a legal argument that Plaintiff’s claims are barred by Heck
v. Humphrey, 512 U.S. 477 (1994). Plaintiff has not shown, and the Court cannot
envision, how permitting Plaintiff to conduct additional discovery would lead to any
evidence that could alter the Heck analysis. Therefore, the Court finds that there is no
need to delay ruling on the Motion for Summary Judgment and Plaintiff’s Motion
requesting the same is denied.
The Court concludes that the Magistrate Judge’s analysis in the Recommendation

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Plaintiff apparently has access to an old version of the Federal Rules of Civil
Procedure as the provision which permits the Court to stay a decision on a motion for summary
judgment to permit the opposing party additional time to gather evidence was changed from
Rule 56(f) to Rule 56(d) as part of the 2010 Amendments. See Fed. R. Civ. P. 56, Advisory
Cmte. Notes for 2010 Amendments. However, the Court will overlook this citation error as it
does not affect the Court’s analysis.

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is thorough and sound, and that there is no clear error on the face of the record. See
Fed. R. Civ. P. 72(b) advisory committee’s note (“When no timely objection is filed, the
court need only satisfy itself that there is no clear error on the face of the record in order
to accept the recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th
Cir. 1991) (“In the absence of timely objection, the district court may review a
magistrate’s report under any standard it deems appropriate.”). Therefore, the Court
finds that dismissal of Plaintiff’s remaining claim without prejudice is appropriate. See
Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996) (dismissal based on Heck
should be without prejudice).
Accordingly, the Court ORDERS as follows:
1.

The Magistrate Judge’s Recommendation (ECF No. 102) is ADOPTED;

2.

Defendants’ Motion for Summary Judgment (ECF No. 79) is GRANTED;

3.

Plaintiff’s Motion for Continuance to Respond to Defendant’s Motion for Summary
Judgment (ECF No. 107) is DENIED;

4.

Plaintiff’s claims in this case are DISMISSED WITHOUT PREJUDICE;

5.

The Clerk of the Court shall enter judgment in favor of Defendants; and

6.

All parties are to bear their own attorney’s fees and costs.
Dated this 1st day of May, 2013.
BY THE COURT:

William J. Martínez
United States District Judge
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