Baer v. Salt Lake City Corporation et al
Filing
63
ORDER ADOPTING REPORT AND RECOMMENDATIONS ; denying 34 Motion to Strike ; denying 40 Motion to Strike ; terminating 26 Motion for Summary Judgment ; adopting Report and Recommendations re 55 Report and Recommendations.; denying 20 Motion to Strike ; granting 26 Motion to Dismiss. Signed by Judge Clark Waddoups on 4/24/14. (jmr)
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION
MARLIN BAER,
Plaintiff,
ORDER ADOPTING REPORT AND
RECOMMENDATION
v.
Case No. 2:13-cv-00336-CW-PMW
SALT LAKE CITY CORPORATION,
LARRY BOWERS, COUNTY OF SALT
LAKE, GENO GARCIA, JEFFERY
SEIGAL, TENNO NAVAREZ, DON
HUNSAKER, TRENTON HEINTZ, and
IENA SWANKE, 1
Judge Clark Waddoups
Defendants.
This case was assigned to United States District Court Judge Clark Waddoups, who then
referred it to United States Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(B). (See Dkt. No. 2.) Consistent with Judge Warner’s treatment of the case, because
Plaintiff is proceeding pro se, the court will liberally construe his pleadings and hold them to a
“less stringent standard than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.
89, 94 (2007) (quotations and citation omitted).
On December 3, 2013, Judge Warner issued a Report and Recommendation
recommending that the court grant the Motion to Dismiss filed by the City Defendants (as
defined in Judge Warner’s Report and Recommendation) and deny Plaintiff’s three motions to
strike the Answers filed by County Defendants (also as defined in Judge Warner’s Report and
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The court identifies the named defendants in this caption in the same manner they are identified in
Plaintiff Marlin Baer’s Complaint. However, Plaintiff has either erroneously identified several of those
Defendants or misspelled several of their names.
Recommendation). (See Dkt. No. 55.)
Plaintiff filed an untimely Objection to Judge Warners’ Report and Recommendation
(Dkt. No. 58.) However, the court has nevertheless carefully reviewed and considered Plaintiff’s
Objection given his pro se representation, though the court will not be favorably disposed to
future untimely filings.
The court is unpersuaded by Plaintiff’s objections and will adopt Judge Warner’s Report
and Recommendation in its entirety. In doing so, the court notes Plaintiff’s repeated objection
that he never consented to the case’s referral to a magistrate judge. (Dkt. Nos. 11, 13, 58.) This
argument fails because “the consent of the parties was not required for the district judge to refer
the case to a magistrate judge” under 28 U.S.C. § 636(b)(1)(B), under which provision Judge
Warner “only made findings of fact and recommendations” and “the ultimate decision-making
authority was retained by the district court.” Lineberry v. United States, 436 Fed. Appx. 293, 295
(5th Cir. June 3, 2010) (internal citations and quotations omitted). To be clear, contrary to
Plaintiff’s objection that “[a] Magistrate has no jurisdiction in an Article III Court of Law,” it is
well-established that “referral to the magistrate [under 28 U.S.C. § 636(b)(1)(B)] did not deprive
[Plaintiff] of a trial by” an Article III Court of Law “since the district court was free to accept,
reject, or modify the magistrate’s recommendation and since the district court entered the final
judgment in the case.” Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989).
Here, as in Lineberry and Jackson, the court has reviewed the magistrate’s
recommendation and will exercise its “ultimate decision-making authority” by entering final
judgment in this case. Upon a de novo review of Judge Warners’ findings, the court APPROVES
AND ADOPTS Judge Warners’ Report and Recommendation (Dkt. No. 55) in its entirety.
Accordingly, following Judge Warners’ Report and Recommendation (Dkt. No. 55), and
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for the reasons stated therein, the court hereby ORDERS as follows:
•
The City Defendants’ Motion to Dismiss (Dkt. No. 26) is GRANTED and
Plaintiff’s claims against the City Defendants are therefore dismissed with
prejudice.
•
Plaintiff’s motions to strike the County Defendants’ Answers (Dkt. Nos. 20, 34,
40) are DENIED.
SO ORDERED this 24th day of April, 2014.
BY THE COURT:
____________________________________
Clark Waddoups
United States District Judge
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