Gates v. Huff et al

Filing 47

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)

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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, Plaintiff, v. HUFF, C/O, CSP; LT. MASCARENAS, CSP; and LT. JOHNSON, INTEL, CSP, Defendants. 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 recommendation. In the absence of a timely objection, the Court may review a magistrate judge’s recommendation under any standard it deems appropriate. -1- 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 -2-

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