Field v. Beneze

Filing 35

ORDER AFFIRMING AND ADOPTING 34 RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE. Defendant's 24 Motion to Dismiss is granted. In forma pauperis status will be denied for the purpose of appeal. By Judge Wiley Y. Daniel on 7/29/13.(mnfsl, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 12-cv-01778-WYD-KMT MICHAEL C. FIELD, Plaintiff, v. THOMAS BENEZE, Defendant. ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE THIS MATTER is before the Court on Defendant’s Motion to Dismiss (ECF No. 24), filed October 29, 2012. In her detailed Recommendation, Magistrate Judge Tafoya recommends that the pending motion be granted and that this case be dismissed. (Recommendation at 27). The Recommendation is incorporated herein by reference. See 28 U.S.C. ' 636(b)(1)(B), Fed. R. Civ. P. 72(b). Magistrate Judge Tafoya advised the parties that written objections were due within fourteen (14) days after service of a copy of the Recommendation. (Recommendation at 27-28). 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 Tafoya’s Recommendation is thorough, well reasoned and sound. I agree with Magistrate Judge Tafoya that the pending motion should be granted and that this case 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 Tafoya (ECF No. 34) is AFFIRMED and ADOPTED. In accordance therewith, it is FURTHER ORDERED that Defendant’s Motion to Dismiss (ECF No. 24) is GRANTED. It is FURTHER ORDERED that I certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from Magistrate Judge Tafoya’s Recommendation or this Order would not be taken in good faith and therefore in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). Thereafter, if Plaintiff files a notice of appeal he also must pay the full $455.00 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth 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). -2- Circuit within thirty days of the court’s final order in accordance with Fed. R. App. P. 24. Dated: July 29, 2013 BY THE COURT: s/ Wiley Y. Daniel Wiley Y. Daniel Senior United States District Judge -3-

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