Melnick v. Marlow

• Court: District Court, D. Colorado
• Decided: February 13, 2024
• Docket: 1:21-cv-03316
• Status: Unknown

Opinion

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

Civil Action No. 21-cv-03316-CMA-SBP HUNTER ADAM MELNICK, Plaintiff,

v.

TONYA GAMBLIN, CPO, THERESA MITCHELL, CPO of DOC, MELISSA LAWRENCE, CTL of DOC, HALL, CPO of DOC, and HARDGROVE, CPO of DOC,

Defendants.

ORDER ADOPTING AND AFFIRMING JANUARY 16, 2024 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the January 16, 2024 Recommendation of United States Magistrate Judge (Doc. # 126), wherein Magistrate Judge Susan B. Prose recommends that Plaintiff Hunter Adam Melnick’s Motion for Preliminary Injunction (Doc. # 85) be denied. Noting that following the Court’s Order (Doc. # 90) Adopting and Affirming former Magistrate Judge Kristen L. Mix’s Recommendation (Doc. # 82) that Parole Defendants’ Motion to Dismiss (Doc. # 48) be granted as to Plaintiff’s First Amendment retaliation claims Plaintiff has not moved to amend the complaint, Judge Prose also recommends that these claims be dismissed 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 Court affirms and adopts the Recommendation for the following reasons. 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. # 126 at 3 n.1.) Due to the Court’s unexpected closure in the days following the issuance of the Recommendation, it was not mailed to Plaintiff until January 22, 2024. (Doc. # 128.) Therefore, pursuant to Federal Rules of Civil Procedure 5(b)(2)(C), 6(d), and 72(b)(2), any objections Plaintiff wished to file were due by February 12, 2024. See (Doc. # 129.) Despite this advisement, no objection to Magistrate Judge Prose’s

Recommendation has been filed. “[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 Prose, 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: e The January 16, 2024 Recommendation of United States Magistrate Judge (Doc. # 126) is AFFIRMED and ADOPTED as an order of this Court; e Plaintiff's Motion for Preliminary Injunction (Doc. # 85) is DENIED; and e Plaintiffs Claim One and Claim Three First Amendment retaliation claims against Tonya Gamblin, Theresa Mitchell, Melissa Lawrence, Hall, and Hardgrove are DISMISSED WITH PREJUDICE. See (Docs. ## 82, 90, 111.) DATED: February 13, 2024 BY THE COURT:

Senior United States District Judge