Parker v. Milyard et al

Filing 51

ORDER Affirming and Adopting Recommendation of the United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge Boland 49 is AFFIRMED and ADOPTED. ORDERED that the Plaintiff's Motion [for] Emergency Temporary Restraining Order 26 is DENIED. ORDERED that the claims against defendant John Doe areDISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii). Accordingly, this matter is DISMISSED by Chief Judge Wiley Y. Daniel on 12/20/12.(jjhsl, )

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

12-cv-00448-WYD-MJW

KEITH PARKER,
Plaintiff,
v.
KEVIN MILYARD;
RYAN LONG; and
JOHN DOE,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court on the “Recommendation on Plaintiff’s Motion
Emergency Temporary Restraining Order and or Peliminary [sic] Injunction Under the
Rules of Federal Rules of Civil Procedure Rule 65(a)(b) (ECF No. 26) and Defendants
Kevin Milyard and Ryan Long’s Motion to Dismiss (ECF No. 36)”, filed November 29,
2012. (ECF No. 49, Recommendation). Magistrate Judge Watanabe recommends that
Plaintiff’s motion be denied, Defendants’ motion be granted, and that this matter be
dismissed. (Recommendation at 11-12). The Recommendation is incorporated herein
by reference. See 28 U.S.C. ' 636(b)(1)(B), Fed. R. Civ. P. 72(b).
Magistrate Judge Watanabe advised the parties that written objections were due
within fourteen (14) days after service of a copy of the Recommendation.
(Recommendation at 13). Despite this advisement, no objections were filed to the

Recommendation. 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 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."1 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 Watanabe’s Recommendation is
thorough, well reasoned and sound. I agree with Magistrate Judge Watanabe that
Plaintiff’s claims should be dismissed 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 Boland
(ECF No. 49) is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that the Plaintiff’s Motion [for] Emergency Temporary
Restraining Order (ECF No. 26) is DENIED. It is
FURTHER ORDERED that the Defendants Kevin Milyard and Ryan Long’s Motion

1

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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to Dismiss (ECF No. 36) is GRANTED. It is
FURTHER ORDERED that the claims against defendant John Doe are
DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Accordingly, this matter is
DISMISSED.
Dated: December 20, 2012
BY THE COURT:

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

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