Bivens v. McGaugh

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Chief Judge Philip A. Brimmer

Civil Action No. 21-cv-00783-PAB-NYW

DWIGHT PHILLIP BIVENS,

Plaintiff,

v.

JOHN MCGAUGH, and BLAIKE, a correctional officer,

Defendants. _____________________________________________________________________

ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION _____________________________________________________________________

This matter is before the Court on the Recommendation of United States Magistrate Judge Nina Y. Wang filed on March 7, 2022 [Docket No. 60]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. Docket No. 60 at 15 n.6; see also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on March 7, 2022. See Docket Nos. 60, 61. No party has objected to the Recommendation. In the absence of an objection, the district court may review a magistrate judge’s recommendation under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It 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.”). In this matter, the Court has reviewed the Recommendation to satisfy itself that there is “no clear error on the face of the record.”1 Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has concluded that the Recommendation is a correct application of the facts and the law. Accordingly, it is ORDERED as follows:

1. The Recommendation of United States Magistrate Judge Nina Y. Wang [Docket No. 60] is ACCEPTED; 2. Defendant John McGaugh’s Motion for Partial Summary Judgment for Failure to Exhaust Administrative Remedies as to Claim 1 [Docket No. 37] is GRANTED; 3. Plaintiff’s claim one is DISMISSED without prejudice for failure to exhaust her administrative remedies; and 4. Defendant John McGaugh is DISMISSED from this case. DATED April 12, 2022. BY THE COURT:

____________________________ PHILIP A. BRIMMER Chief United States District Judge

1This standard of review is something less than a “clearly erroneous or contrary to law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review. Fed. R. Civ. P. 72(b).