Potter v. Johnson et al

Filing 41

ORDER. ORDERED that the Recommendation of United States Magistrate Judge [Docket No. 40] is ACCEPTED. ORDERED that defendant Salida Police Department Officer Russell Johnsons Motion to Dismiss [Docket No. 36] is DENIED. ORDERED that, on or before March 27, 2015, plaintiff Gina Potter shall show cause why this case should not be dismissed for lack of prosecution by Judge Philip A. Brimmer on 03/17/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-00116-PAB-NYW
GINA POTTER,
Plaintiff,
v.
SALIDA POLICE DEPARTMENT OFFICER RUSSELL JOHNSON,
ANNA MARIE SMITH, an individual, and
DTJ INVESTMENT, LLC, d/b/a Comfort Inn,
Defendants.

ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 40] (the “Recommendation”) filed on February 26, 2015.
Magistrate Judge Nina Y. Wang recommends that Defendant Salida Police Department
Officer Russell Johnson’s Motion to Dismiss [Docket No. 36] be denied, but that the
Court order plaintiff Gina Potter to show cause as to why this case should not be
dismissed for lack of prosecution. Docket No. 40 at 9. The Recommendation states
that objections to the Recommendation must be filed within fourteen days after its
service on the parties. See 28 U.S.C. § 636(b)(1)(C). The Recommendation was
served on February 26, 2015. No party has objected to the Recommendation.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)

(“[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”). In this matter, the Court has reviewed the
Recommendation to satisfy itself that there is “no clear error on the face of the record.”1
Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has
concluded that the Recommendation is a correct application of the facts and the law.
Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 40] is ACCEPTED. It is further
ORDERED that defendant Salida Police Department Officer Russell Johnson’s
Motion to Dismiss [Docket No. 36] is DENIED. It is further
ORDERED that, on or before March 27, 2015, plaintiff Gina Potter shall show
cause why this case should not be dismissed for lack of prosecution.

DATED March 17, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

1

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).
2