Barron v. Fetterhoff et al

Filing 39

ORDER Adopting and Affirming 37 Report and Recommendations: 27 Motion to Dismiss is granted, this case is dismissed, and the Plaintiff's Motions for Preliminary Injunction, 8 , 22 and 34 , are denied as moot, by Judge Christine M. Arguello on 2/4/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-01399-CMA-BNB
PERCY BARRON,
Plaintiff,
v.
YVETTE FETTERHOFF,
DAVID ALLRED, and
BLAKE DAVIS,
Defendants.

ORDER ADOPTING AND AFFIRMING JANUARY 11, 2013
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the January 11, 2013 Recommendation by
United States Magistrate Boyd N. Boland that Defendants’ Motion to Dismiss (Doc.
# 27) be granted and Plaintiff’s Complaint be dismissed for failure to state a claim
upon which relief can be granted.1 The Magistrate Judge further recommended that this
action count as a “prior occasion” for purposes of 28 U.S.C. § 1915(g). (Doc. # 37 at 78.) The Recommendation is incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed. R. Civ. P. 72(b).

1

Magistrate Judge Boland issued a separate Recommendation on January 11, 2013,
recommending that Plaintiff’s three separate motions for preliminary injunction (Doc. ## 8, 22,
34) be denied. (Doc. # 36.) Because the Court agrees with the Magistrate Judge that the
Complaint should be dismissed under Fed. R. Civ. P. 12(b)(6), these motions are denied
as moot.

The Recommendation advised the parties that specific written objections were
due within fourteen (14) days after being served with a copy of the Recommendation.
(Doc. # 37 at 8 n.3.) Despite this advisement, no objections to Magistrate Judge
Bolandx’s Recommendation have been filed by either party. “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.”).
The Court has reviewed all the relevant pleadings concerning Defendants’ Motion
to Dismiss. Based on this review, the Court concludes that Magistrate Judge Boland’s
thorough and comprehensive analyses and recommendations are correct and that
“there is no clear error on the face of the record.” Fed. R. Civ. P. 72 advisory
committee’s note. Therefore, the Court ADOPTS the Recommendation of Magistrate
Judge Mix as the findings and conclusions of this Court.
Accordingly, it is ORDERED that the Recommendation of the United States
Magistrate Judge (Doc. # 37) is AFFIRMED and ADOPTED.
It is FURTHER ORDERED that Defendants’ Motion to Dismiss (Doc. # 27) is
GRANTED and this case be DISMISSED. This action counts as a “prior occasion” for
purposes of 28 U.S.C. § 1915(g).

2

It is FURTHER ORDERED that Plaintiff’s Motions for Preliminary Injunction (Doc.
## 8, 22, 34) are DENIED AS MOOT.
DATED: February

04

, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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