Gates v. Huff et al
ORDER adopting Report and Recommendations re 43 Report and Recommendations; granting 35 Motion for Summary Judgment;denying as moot 31 Motion to Dismiss for Failure to State a Claim by Judge Daniel D. Domenico on 3/31/21.(pglov)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Daniel D. Domenico
Civil Action No. 1:20-cv-00284-DDD-SKC
JOSEPH E. GATES,
HUFF, C/O, CSP;
LT. MASCARENAS, CSP; and
LT. JOHNSON, INTEL, CSP,
ORDER ADOPTING RECOMMENDATION AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is the recommendation (Doc. 43) of United States
Magistrate Judge S. Kato Crews that the Court grant Defendants’ motion for summary judgment (Doc. 35) for failure to exhaust administrative remedies. The recommendation states that objections to the recommendation must be filed within fourteen days after its service on the
parties. (Doc. 43 at 7 (citing 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ.
P. 72(b)(2)).) The recommendation was served on February 4, 2021 at
Plaintiff’s address of record at the Colorado State Penitentiary. On February 12, 2021, the recommendation was returned to the Court with a
note that Plaintiff had been paroled. (Doc. 44.) The Court obtained
Plaintiff’s new address and re-served the recommendation at that address on March 4, 2021. (Doc. 45; Doc. 46.) No party has objected to the
In the absence of a timely objection, the Court may review a magistrate judge’s recommendation 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, 154 (1985)). In this matter, the Court has reviewed the recommendation to satisfy itself that there is “no clear error
on the face of the record.” Fed. R. Civ. P. 72(b) Advisory Committee
Notes. Based on that review, the Court has concluded that the recommendation is a correct application of the facts and the law. As Judge
Crews determined, Plaintiff did not comply with prison grievance procedure deadlines, and he has therefore procedurally defaulted on the
Prison Litigation Reform Act requirement to exhaust his administrative
remedies before bringing his claims.
Accordingly, it is ORDERED that:
The Recommendation re: Defendants’ Motion for Summary Judgment [#35] (Doc. 43) is ACCEPTED and ADOPTED;
Defendants’ Motion for Summary Judgment for Failure to Exhaust
Administrative Remedies (Doc. 35) is GRANTED; and
Defendants’ Motion to Dismiss Under Fed. R. Civ. P. 12(b)(6)
(Doc. 31) is DENIED AS MOOT.
DATED: March 31, 2021
BY THE COURT:
Hon. Daniel D. Domenico
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