Dawson-Phillips v. State of Colorado et al

Filing 33

ORDER: The Magistrate Judge's First Recommendation 28 , as modified herein, is ACCEPTED and ADOPTED in its entirety. The Magistrate Judge's Second Recommendation 30 is ACCEPTED and ADOPTED in its entirety, and Plaintiff's Complaint as against Defendants Tony Carochi and Joe Ortiz is DISMISSED WITHOUT PREJUDICE. By Judge Raymond P. Moore on 3/2/2015.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 14-cv-03201-RM-NYW
DRED DAWSON-PHILLIPS, of others similarly situated,
Plaintiff,
v.
STATE OF COLORADO,
RICK RAEMISCH,
ROGER WERHOLTZ,
TONY CAROCHI,
TOM CLEMENTS,
ARISTEDES ZAVARIS,
JOE ORTIZ, and
JOHN SUTHERS,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
THIS MATTER is before the Court on: (1) the January 26, 2015, Recommendation of
United States Magistrate Judge Boyd N. Boland (“First Recommendation”) that the Complaint
be dismissed without prejudice against Defendant Tony Carochi for failure to prosecute (ECF
No. 28); and (2) the February 3, 2015, Recommendation of United States Magistrate Judge Boyd
N. Boland1 (“Second Recommendation”) (ECF No. 30) that the Complaint be dismissed without
prejudice against Defendant Joe Ortiz for failure to prosecute. The Recommendations are
incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).

1

This case was subsequently reassigned to Magistrate Judge Nina Y. Wang upon her appointment. (ECF No. 32.)

The Recommendations advised the parties that specific written objections were due
within fourteen days after being served with a copy of the Recommendations. (ECF No. 28 at 2;
No. 30 at 2.) Despite this advisement, no objections to the Recommendations have to date been
filed by any party.2 (See generally Dkt.)
The Court has reviewed the Recommendations, and other relevant portions of the court
file. The Court finds the First Recommendation was issued on January 26, 2015, several days
before the February 5, 2015, return date on the Order to Show Cause upon which that
recommendation was based. The return date, however, has now passed and no response has been
filed to the Order to Show Cause. Accordingly, the Court modifies the First Recommendation to
reflect that Plaintiff did not respond to the Order to Show Cause by the February 5, 2015, due
date and as of the date of this Order, and, as modified, accepts the First Recommendation.
Accordingly, and in light of the current record, the Court otherwise concludes that the Magistrate
Judge’s analysis in the Recommendations was thorough and sound, and that there is no clear
error on the face of the record. See Fed. R. Civ. P. 72(b) advisory committee’s note (“When no
timely objection is filed, the court need only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.”); see also Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a

2

The Court is mindful that Plaintiff proceeds pro se and that the First Recommendation mailed to Plaintiff was
returned as undeliverable. (ECF No. 31.) An examination of the court file, however, shows the First
Recommendation was mailed to the address Plaintiff provided (ECF Nos. 1 & 31); and Plaintiff filed no change of
contact information as required by D.C.COLO.LAttyR 5(c) or otherwise notified the court of any change of address.
(See generally Dkt.)
2

magistrate’s report under any standard it deems appropriate.”). It is therefore ORDERED as
follows:
1.

The Magistrate Judge’s First Recommendation (ECF No. 28), as modified herein,

is ACCEPTED and ADOPTED in its entirety;
2.

The Magistrate Judge’s Second Recommendation (ECF No. 30) is ACCEPTED

and ADOPTED in its entirety; and
3.

Plaintiff’s Complaint as against Defendants Tony Carochi and Joe Ortiz is

DISMISSED WITHOUT PREJUDICE.
DATED this 2nd day of March, 2015.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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