Baumann v. O'Neil et al

Filing 42

ORDER Affirming 39 August 10, 2015 Amended Recommendation of United States Magistrate Judge. The Motion to Dismiss First Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc # 28 ) filed by Defendants is GRANTED IN PART and DENIED IN PA RT. Plaintiff's municipal liability allegations and claims as against the City and County of Denver are DISMISSED WITHOUT PREJUDICE. Plaintiff's claims as against Defendant O'Neil in his official capacity are DISMISSED WITHOUT PREJUDICE. The Motion to Dismiss is DENIED in all other respects. By Judge Christine M. Arguello on 08/31/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 14-cv-02751-CMA-NYW
BRUCE O. BOUMANN,
Plaintiff,
v.
BRIAN O’NEIL, in his individual and official capacity, and
CITY AND COUNTY OF DENVER,
Defendants.
ORDER AFFIRMING AUGUST 10, 2015 AMENDED RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the August 10, 2015 Amended
Recommendation 1 by United States Magistrate Judge Nina Y. Wang that the Motion to
Dismiss First Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc. # 28) filed
by Defendants Brian O’Neil and City and County of Denver be granted in part and
denied in part. (Doc. # 39.) 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.

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Magistrate Judge Wang issued a Recommendation on July 24, 2015 (Doc. # 38), but
inadvertently did not include an advisement to the Parties of their rights to object under 28
U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). On August 10, 2015, Judge Wang issued the
Amended Recommendation that did not differ in substance to the original Recommendation, but
did include such an advisement.

(Doc. # 39.) 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 First Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) 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 Amended Recommendation of the United
States Magistrate Judge (Doc. # 39) is AFFIRMED and ADOPTED. It is
FURTHER ORDERED that the Motion to Dismiss First Amended Complaint
Pursuant to Fed. R. Civ. P. 12(b)(6) (Doc # 28) filed by Defendants is GRANTED IN
PART and DENIED IN PART. Specifically,
1. Plaintiff’s municipal liability allegations and claims as against the City and
County of Denver are DISMISSED WITHOUT PREJUDICE.
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2. Plaintiff’s claims as against Defendant O’Neil in his official capacity are
DISMISSED WITHOUT PREJUDICE.
3. The Motion to Dismiss is DENIED in all other respects.
DATED: August 31, 2015

BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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