Rivera v. Long

Opinion

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

Civil Action No. 19-cv-03608-CMA-NYW

JOEY RIVERA,

Plaintiff,

v.

JEFF LONG, WILLIAM SCOTT, MICHELLE WINGERT, and MICHAEL YOUNGER,

Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the Recommendation (Doc. # 124) of United States Magistrate Judge Nina Y. Wang. Judge Wang recommends that Defendants’ Motion to Dismiss (Doc. # 109) be granted, that the claims against Defendant Wingert be dismissed without prejudice for lack of subject matter jurisdiction, and that the claims against Defendants Long, Scott, and Younger be dismissed for failure to state a claim. The Court affirms and adopts Judge Wang’s Recommendation. Under 28 U.S.C. § 636(a)(1)(B), this Court may designate a magistrate judge to consider dispositive motions and submit recommendations to the Court. When a magistrate judge submits a recommendation, the Court must “determine de novo any part of the magistrate judge’s [recommended] disposition that has been properly objected to.” F.R.C.P. 72(b)(3). In the absence of a timely objection, however, “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). Plaintiff has not objected to Judge Wang’s Recommendation, and the deadline to do so has now passed. Therefore, the Court reviews Judge Wang’s Recommendation for clear error. See Fed. R. Civ. P. 72(a). Having closely reviewed the Recommendation, as well as with the applicable portions of the record and the relevant legal authority, the Court is satisfied that the Recommendation is not clearly erroneous. See Fed. R. Civ. P. 72(a). The Court

therefore ORDERS that the Recommendation of United States Magistrate Judge Wang (Doc. # 124) is AFFIRMED and ADOPTED as an order of this Court. It is ORDERED that Defendants’ Motion to Dismiss (Doc. # 109) is GRANTED. It is FURTHER ORDERED that Plaintiff’s Third Amended Complaint (Doc. # 96) is DISMISSED WITHOUT PREJUDICE1 as to Defendant Wingert. It is

1 A dismissal for lack of jurisdiction must be without prejudice because the court “lack[s] jurisdiction to make a determination on the merits.” Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006). However, because the claims against Defendant Wingert are moot, the Court is directing the clerk to close this case. FURTHER ORDERED that Plaintiff's Third Amended Complaint (Doc. # 96) is DISMISSED WITH PREJUDICE? as to Defendants Long, Scott, and Younger. It is The Clerk is directed to close this case. DATED: January 4, 2022

BY THE COURT:

CHRISTINE M. ARGUELLO United States District Judge

? Judge Wang did not decide whether dismissal of the claims against Defendants Long, Scott, and Younger should be with prejudice. However, this Court has already dismissed Mr. Rivera’s claims without prejudice once. (see Doc. # 87). “A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6) and granting leave to amend would be futile.” Brereton 434 F.3d at 1219. The Court finds that granting Plaintiff leave to amend his Complaint would be futile, and that it is appropriate to dismiss Plaintiff's claims with prejudice.