Rael v. Boyd et al

Filing 44

ORDER Affirming and Adopting Recommendation of United States Judge. ORDERED that the Recommendation of United States Magistrate Judge dated March 1, 2013, is AFFIRMED and ADOPTED. ORDERED that Defendant McLaughlin is DISMISSED WITHOUT PREJUDICE from this action, and shall hereafter be taken off the caption by Judge Wiley Y. Daniel on 03/21/13.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-02093-WYD-BNB
IGNACIO RAY RAEL,
Plaintiff,
v.
McLAUGHLIN (Officer),
SHAWN MURPHY (Case Manager),
LLOYD (Nurse Practitioner),
KATHLEEN BOYD (Nurse) (12547),
MIKE AURITI (Officer) (1305),
JACOPS (Officer),
MARQUEZ (Sergeant),
MARTINEZ, Sergeant,
BRENDA GONZALEZ (Sergeant),
DEBORAH MOORE (Nurse) (11251), and
L. PAYNE (Case Manager) (8762),
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with the Recommendation of
United States Magistrate Judge and Order filed March 1, 2013. Magistrate Judge
Boland recommends therein that this action be dismissed as to Defendant McLaughlin,
and orders that Plaintiff’s Motion for Service and Summons be denied.
As to the recommendation, Magistrate Judge Boland notes that the Department
of Corrections (“DOC”) had acknowledged and waived service for all Defendants except
McLaughlin. While the DOC provided a forwarding address for McLaughlin, the United

States Marshal Service was unable to serve McLaughlin at that address. (See Process
Receipt and Return, ECF No. 25.)
On December 17, 2012, Plaintiff filed a motion asking that the court issue an
immediate order for service and summons of the complaint to McLaughlin. That motion
was denied by Magistrate Judge Boland in an Order to Show Cause filed January 28,
2013, ECF No. 39. He noted in the Order that Plaintiff is responsible for providing the
correct address for the Defendant, not the Clerk of the Court or the United States
Marshal Service. He also ordered Plaintiff to show cause in writing by February 25,
2013, why the Complaint should not be dismissed against McLaughlin for failure to
prosecute. If no such showing was made, Magistrate Judge Boland stated the action
would be dismissed without prejudice against McLaughlin for failure to prosecute.
In response to the Order to Show Cause, on February 4, 2013, Plaintiff
resubmitted the Motion for Service and Summons he filed on December 17, 2012.
(ECF No. 40). That motion was denied by Magistrate Judge Boland, and he found in
his Recommendation and Order that Plaintiff failed to show cause why the Complaint
should not be dismissed as to McLaughlin. (Recommendation at 3.)
Magistrate Judge Boland advised the parties that specific written objections were
due within fourteen (14) days after service of the Recommendation. (Recommendation
at 3 n. 1.) Despite this advisement, no objections were filed. No objections having
been filed, I am vested with discretion to review the Recommendation “under 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
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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 agree with Magistrate Judge Boland that Plaintiff failed to
effectuate service on Defendant McLaughlin and failed to show cause as ordered by the
Magistrate Judge as to why the case should not be dismissed against McLaughlin for
failure to prosecute. Accordingly, I find that dismissal of Defendant McLaughlin is
appropriate pursuant to D.C.COLO.LCivR 41.1. It is therefore
ORDERED that the Recommendation of United States Magistrate Judge dated
March 1, 2013, is AFFIRMED and ADOPTED. In accordance therewith, it is
ORDERED that Defendant McLaughlin is DISMISSED WITHOUT PREJUDICE
from this action, and shall hereafter be taken off the caption.
Dated: March 21, 2013
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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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