Williams v. Allred

Filing 31

ORDER granting 21 Motion to Dismiss for Failure to State a Claim; adopting 26 Report and Recommendations. by Judge R. Brooke Jackson on 11/24/14.(jdyne, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 13-cv-03420-RBJ-BNB
WESLEY BERNARD WILLIAMS,
Plaintiff,
v.
DAVID ALLRED, (Doctor)
Defendant.

ORDER

This matter is before the Court on the October 22, 2014 Order and Recommendation of
Magistrate Judge Boyd N. Boland [ECF No. 26]. The Recommendation addresses the
defendant’s Motion to Dismiss for Failure to State a Claim [ECF No. 21] and 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. The plaintiff filed an
objection on October 27, 2014 [ECF No. 27]. The defendant filed a response to the plaintiff’s
objection on October 30, 2014 [ECF No. 28].
Following the issuance of a magistrate judge’s recommendation on a dispositive matter,
the district court judge must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). The district judge is permitted to
“accept, reject, or modify the recommended disposition; receive further instruction; or return the
matter to the magistrate with instructions.” Id. “In the absence of timely objection, the district

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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) (“It 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 the relevant filings concerning the Recommendation, in
particular the Complaint, the motion to dismiss, the briefs on the motion, and the objection and
response. The Court has conducted a de novo review of the Recommendation in response to the
plaintiff’s timely-filed objection. Based on this review, the Court concludes that Judge Boland’s
analyses and recommendations are correct. The Court declines, however, to reach the question
of whether the plaintiff lacks a remedy under Bivens v. Six Unknown Named Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), for violations of the First Amendment. Instead, the
Court adopts Judge Boland’s alternative holding that the plaintiff failed to sufficiently plead a
First Amendment retaliation claim. Consistent with this opinion, the Court ADOPTS the
Recommendation of the United States Magistrate Judge as the findings and conclusions of this
Court.
Accordingly, it is ORDERED that the Recommendation of the United States Magistrate
Judge [ECF No. 26] is AFFIRMED, and it is ADOPTED (except as noted above). The
defendant’s Motion to Dismiss [ECF No. 21] is GRANTED. Judgment will enter dismissing the
case with prejudice.
DATED this 24th day of November, 2014.
BY THE COURT:

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___________________________________
R. Brooke Jackson
United States District Judge

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