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, )

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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

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