Jones v. Burtlow

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Christine M. Arguello

Civil Action No. 20-cv-03693-CMA-MEH

ADAM JONES,

Plaintiff,

v.

STEPHENS, in his individual capacity,

Defendant.

ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the October 14, 2021 Recommendation of United States Magistrate Judge (Doc. # 46), wherein Magistrate Judge Michael E. Hegarty recommends that this Court grant Defendant’s Motion to Dismiss (Doc. # 32) and dismiss Plaintiff’s sole remaining claim with prejudice. 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. # 46 at 11 n.3.) Despite this advisement, no objection to Magistrate Judge Hegarty’s 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 Hegarty, 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 October 14, 2021 Recommendation of United States Magistrate Judge

Michael E. Hegarty (Doc. # 46) is AFFIRMED and ADOPTED as an Order of this Court; • Defendant’s Motion to Dismiss (Doc. # 32) is GRANTED; and • Plaintiff’s sole remaining claim is DISMISSED WITH PREJUDICE for failure to state a claim and because amendment would be futile.1 See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (dismissal of a

1 The Court observes that Plaintiff has already amended his complaint once. See (Doc. # 8.) Further, it would be futile for Plaintiff to amend the complaint because he does not allege that Defendant violated a clearly established constitutional right and, therefore, Defendant is entitled to qualified immunity. Defendant’s confiscation of Plaintiff’s mail (a greeting card and five pictures of children) was reasonably related to the legitimate penological interest of preventing inmates convicted of sex crimes involving children from receiving mail that includes photos of children. See, e.g., Ahlers v. Rabinowitz, 684 F.3d 53, 64–65 (2d Cir. 2012). pro se complaint for failure to state a claim is proper only where it would be futile to give him an opportunity to amend). The Clerk of Court is directed to close this case. DATED: November 8, 2021 BY THE COURT:

CHRISTINE M. ARGUELLO United States District Judge