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, )

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).

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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

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