Winkler v. Wilson et al

Filing 157

ORDER The Magistrate Judges Recommendation ECF No. 146 is ADOPTED in its entirety; Plaintiffs Motion for Preliminary Injunction and TRO ECF No. 100 is DENIED as MOOT; Plaintiffs Motion for Preliminary Injunction and TRO seeking a court order directing unimpeded access to inmates Louis Madrid and Edward Gomez for the purpose of obtaining their declarations ECF No. 101 is DENIED and; Defendant Karbon Arms 62 Motion to Dismiss Pursuant to Fed. R. Civ. P 12(b)(6) is GRANTED. Claim Four is hereby DISMISSED WITHOUT PREJUDICE and the Clerk of the Court is DIRECTED to remove Defendant Karbon Arms as a defendant in this action, by Judge William J. Martinez on 2/19/2013.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-03324-WJM-MJW
SHAWN MANDEL WINKLER,
Plaintiff,
v.
THOMAS MERTENS, Correctional Officer,
JOHN DOE 2, Unknown Officer of Sterling Correctional facility on Hospital Duty,
WESLY WILSON, Case Manager Supervisor,
ROBERT DICK, Case Manager,
SGT. BRADSHAW, Housing Officer,
CORRECTIONAL OFFICER LOIZER,
all individually and in their official capacities, and
KARBON ARMS, Manufacturer of the KARBON Band-it,
Defendants.
______________________________________________________________________
ORDER ADOPTING JANUARY 24, 2013 RECOMMENDATION OF MAGISTRATE
JUDGE
DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND TRO
DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND TRO
GRANTING DEFENDANT KARBON ARMS’ MOTION TO DISMISS
______________________________________________________________________
This matter is before the Court on the January 24, 2013 Recommendation of
United States Magistrate Judge Michael J. Watanabe (the “Recommendation”) (ECF No.
146) that both Plaintiff’s Motions for Preliminary Injunction and TRO (ECF Nos. 100 and
101) be denied and Defendant Karbon Arms’ Motion to Dismiss (ECF No. 62) 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. 146, at 12-13.) Despite this advisement, no objections to the Magistrate Judge’s
Recommendation have to date been filed by either party.
The Court concludes that the Magistrate Judge’s analysis was 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.”).
In accordance with the foregoing, the Court ORDERS as follows:
(1)

The Magistrate Judge’s Recommendation (ECF No. 146) is ADOPTED in its
entirety;

(2)

Plaintiff’s Motion for Preliminary Injunction and TRO (ECF No. 100) is DENIED as
MOOT;

(3)

Plaintiff’s Motion for Preliminary Injunction and TRO seeking a court order
directing unimpeded access to inmates Louis Madrid and Edward Gomez for the
purpose of obtaining their declarations (ECF No. 101) is DENIED and;

(4)

Defendant Karbon Arms’ Motion to Dismiss Pursuant to Fed. R. Civ. P 12(b)(6) is
GRANTED. Claim Four is hereby DISMISSED WITHOUT PREJUDICE and the
Clerk of the Court is DIRECTED to remove Defendant Karbon Arms as a
defendant in this action.

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Dated this 19th day of February, 2013.
BY THE COURT:

_________________________
William J. Martínez
United States District Judge

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