Dmytryszyn v. Clements et al

Filing 108

ORDER DENYING Motion to Dismiss for Lack of Prosecution 80 and AFFIRMING AND ADOPTING the Recommendation of the United States Magistrate Judge 106 . SO ORDERED BY Judge Christine M. Arguello on 11/11/2015. (cmalc3)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello Civil Action No. 12-cv-03241-CMA-NYW ADAM DMYTRYSZYN, Plaintiff, v. TOM CLEMENTS, Executive Director, LIEUTENANT BERNADETTE SCOTT, CAPTAIN T. SCOTT, LIEUTENANT MAGGELSON, MAJOR BILDERAVA, CAPTAIN BOLT, SUPERINTENDENT JAMES FALK, LIEUTENANT JERRI MACINTOSH, and SERGEANT STEPHEN LADD, Defendants. ORDER AFFIRMING OCTOBER 22, 2015 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This matter is before the Court on the October 22, 2015 Recommendation by United States Magistrate Judge Nina Y. Wang that the Motion to Dismiss for Failure to Make Payment Toward the Filing Fee (Doc. # 80) filed by Defendants Bilderava, Bolt, Falk, Ladd, Maggelson, B. Scott, and T. Scott be denied. (Doc. # 106.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). The Recommendation advised the parties that specific written objections were due within fourteen (14) days after being served with a copy of the Recommendation. (Doc. # 106.) Despite this advisement, no objections to the Recommendation issued by Magistrate Judge Wang were filed by either party. “In the absence of timely objection, the district court may review a magistrate [judge’s] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing 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.”)). The Court has reviewed all the relevant pleadings concerning the Motion to Dismiss filed by Defendants and the Recommendation. Based on this review, the Court concludes that Magistrate Judge Wang’s thorough and comprehensive analysis and recommendation is correct and that “there is no clear error on the face of the record.” Fed. R. Civ. P. 72, advisory committee’s note. Therefore, the Court ADOPTS the Recommendation of Magistrate Judge Wang as the findings and conclusions of this Court. Accordingly, it is ORDERED that the Recommendation of the United States Magistrate Judge (Doc. # 106) is AFFIRMED and ADOPTED. It is FURTHER ORDERED that the Motion to Dismiss for Failure to Make Payment Toward the Filing Fee (Doc. # 80) filed by Defendants is DENIED. It is FURTHER ORDERED that Plaintiff is directed to pay the sum of $6.09 by November 22, 2015. Plaintiff is further advised that should he fail to do so, this Court will dismiss his complaint. Also, Plaintiff is ordered to show cause no later than 2 November 12, 2015, as to why he has failed to effect service on the Executive Director within 120 days of the filing of Plaintiff’s original or amended Complaint in this action, as required by Fed. R. Civ. P. 4(m), to the extent Plaintiff seeks to assert any official capacity claim against the Executive Director. DATED: November 11, 2015 BY THE COURT: _______________________________ CHRISTINE M. ARGUELLO United States District Judge 3

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