Rubin v. Hilling, et al

Filing 45

ORDER Adopting and Affirming 39 Report and Recommendations: Plaintiff's objections are overruled, 19 Motion to Dismiss is granted, and the case against Defendant Brett Hilling is dismissed, by Judge Christine M. Arguello on 4/4/13.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 12-cv-01842-CMA-MEH
PHILIP J. RUBIN,
Plaintiff,
v.
BRETT HILLING, and
JOHN DOES 1 and 2,
Defendants.

ORDER ADOPTING AND AFFIRMING MARCH 7, 2013
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case was referred to United States Magistrate Judge Michael E. Hegarty
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. (Doc. # 13.) On March 7, 2013,
Judge Hegarty issued a Recommendation, advising that “the District Court grant
Defendants’ Motion to Dismiss . . . the Second Amended Complaint [Doc. # 19],
and deny the Plaintiff leave to file a Third Amended Complaint.” (Doc. # 39 at 24.)
Thereafter, Plaintiff filed a “Response to Summary Judgment” (Doc. # 43), which
the Court construes as an objection to Judge Hegarty’s Recommendation.
When a magistrate judge issues a recommendation on a dispositive matter,
Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part
of the magistrate judge’s [recommended] disposition that has been properly objected
to.” In conducting its review, “[t]he district judge may accept, reject, or modify the

recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id.
In the instant case, Plaintiff does not “properly object[]” to any part of the
Recommendation. Instead, he reiterates arguments that were properly before
Magistrate Judge Hegarty at the time his Recommendation issued. Nonetheless,
the Court has conducted a de novo review of this matter, including reviewing all relevant
pleadings, the Recommendation, and Plaintiff’s objection thereto. Based on this de
novo review, the Court concludes that Judge Hegarty’s Recommendation is correct and
is not called into question by Plaintiff’s objection.1
Accordingly, it is hereby ORDERED that Plaintiff’s objection (Doc. # 43) is
OVERRULED. It is
FURTHER ORDERED that the Recommendation of United States Magistrate
Judge Michael E. Hegarty (Doc. # 39) is AFFIRMED and ADOPTED as an Order of this
Court. Pursuant to the Recommendation, it is
FURTHER ORDERED that the underlying Motion to Dismiss (Doc. # 19) is
GRANTED, and Plaintiff is DENIED LEAVE to file a Third Amended Complaint.
As such, it is
ORDERED that the case is DISMISSED as against Defendant Brett Hilling.
DATED: April

04 , 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge
1

The Court also rejects Plaintiff’s renewed request for appointment of pro bono counsel (Doc.
# 43 at 2) – for the reasons given by Judge Hegarty in denying Plaintiff’s previous request (see
Doc. # 27).

2