Plummer v. McDermott et al

Filing 74

ORDER Adopting and Affirming 71 Report and Recommendations, and granting 40 Motion for Summary Judgment by Judge Christine M. Arguello on 2/18/14. Plaintiff's objection 73 is overruled. (dkals, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello Civil Action No. 13-cv-00440-CMA-MJW RONALD PLUMMER, Plaintiff, v. McDERMOTT, Hospital Administrator, ALLRED, Clinical Director, and CINK, Mid-Level Provider, Defendants. ORDER ADOPTING AND AFFIRMING JUNE 11, 2013 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This case was referred to United States Magistrate Judge Michael J. Watanabe pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. (Doc. # 5.) On January 24, 2014, Judge Watanabe issued a Recommendation, advising that “Defendants’ Motion for Summary Judgment [(Doc. # 40)] be granted, and this case be dismissed without prejudice based upon the plaintiff’s failure to exhaust his administrative remedies prior to bringing this action.” (Doc. # 71 at 6.) Thereafter, Plaintiff filed an objection to Judge Watanabe’s Recommendation (Doc. # 73). 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 references a response brief he “is filing” to the Recommendation, but no such brief was attached. In short, Plaintiff has advanced no substantive argument or objection in reaction to the Recommendation within the time period he had for filing such objections. 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 Watanabe’s Recommendation is correct and is not called into question by Plaintiff’s objection. Accordingly, it is hereby ORDERED that Plaintiff’s objection (Doc. # 73) is OVERRULED. It is FURTHER ORDERED that the Recommendation of United States Magistrate Judge Michael J. Watanabe (Doc. # 71) is AFFIRMED and ADOPTED as an Order of this Court. Pursuant to the Recommendation, it is FURTHER ORDERED that the underlying Motion (Doc. # 40) is GRANTED and the claims against Defendant are DISMISSED WITHOUT PREJUDICE. DATED: February 18, 2014 BY THE COURT: _______________________________ CHRISTINE M. ARGUELLO United States District Judge 2

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