Harris v. Polis et al

Filing 59

ORDER Adopting Recommendation of United States Magistrate Judge Scott T. Varholak. The Recommendation of United States Magistrate Judge (Doc. # 58) is AFFRIMED and ADOPTED as an Order of this Court. Plaintiff's Motion for Emergency Injunction (Doc. # 6) is DENIED. Defendant Dean Williams's Motion to Dismiss (Doc. # 46) is GRANTED and Plaintiff's claims against him are hereby DISMISSED WITHOUT PREJUDICE. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding tha t when a plaintiff is proceeding pro se, dismissal with prejudice is only appropriate where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend (quotation omitted)). Defendant Jared Polis's Motion to Dismiss (Doc. # 47) is GRANTED, and Plaintiff's claims against him are hereby DISMISSED WITHOUT PREJUDICE. See Oxendine, 241 F.3d at 1275. The Clerk of Court is directed to close this case. SO ORDERED by Judge Christine M. Arguello on 7/16/2021.(swest)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 20-cv-02999-CMA-GPG
MARK HARRIS,
Plaintiff,
v.
JARED POLIS, Governor, and
DEAN WILLIAMS, Executive Director Dept. of Corrections,
Defendants.
ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE SCOTT T. VARHOLAK
This matter is before the Court on the June 23, 2021 Recommendation of United
States Magistrate Judge (“Recommendation”) (Doc. # 58), wherein Magistrate Judge
Varholak recommends that this Court deny Plaintiff’s Motion for Emergency Injunction
(Doc. # 6) and grant both Defendant Dean Williams’s Motion to Dismiss (Doc. # 46) and
Defendant Jared Polis’s Motion to Dismiss (Doc. # 47). 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.
(Doc. # 58 at 16.) Despite this advisement, no objection to the Recommendation has
been filed by any party.

“[T]he district court is accorded considerable discretion with respect to the
treatment of unchallenged magistrate reports. 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.”)).
After reviewing the Recommendation of Magistrate Judge Varholak, in addition to
applicable portions of the record and relevant legal authority, the Court is satisfied that
the Recommendation is sound and not clearly erroneous or contrary to law. See Fed. R.
Civ. P. 72(a). Accordingly, the Court ORDERS as follows:
•

the Recommendation of United States Magistrate Judge (Doc. # 58) is
AFFIRMED and ADOPTED as an Order of this Court;

•

Plaintiff’s Motion for Emergency Injunction (Doc. # 6) is DENIED;

•

Defendant Dean Williams’s Motion to Dismiss (Doc. # 46) is GRANTED,
and Plaintiff’s claims against him are hereby DISMISSED WITHOUT
PREJUDICE. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir.
2001) (holding that when a plaintiff is proceeding pro se, dismissal with
prejudice is only appropriate “where it is obvious that the plaintiff cannot
prevail on the facts he has alleged and it would be futile to give him an
opportunity to amend” (quotation omitted));

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•

Defendant Jared Polis’s Motion to Dismiss (Doc. # 47) is GRANTED, and
Plaintiff’s claims against him are hereby DISMISSED WITHOUT
PREJUDICE. See Oxendine, 241 F.3d at 1275; and

•

the Clerk of Court is directed to close this case.

DATED: July 16, 2021
BY THE COURT:
_____________________________
CHRISTINE M. ARGUELLO
United States District Judge

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