Sgaggio v. Weiser

Opinion

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

Civil Action No. 21-cv-00830-PAB-NYW

DELBERT SGAGGIO,

Plaintiff,

v.

PHIL WEISER, official and individual capacity, and STATE OF COLORADO,

Defendants. _____________________________________________________________________

ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION _____________________________________________________________________

This matter is before the Court on the Recommendation of United States Magistrate Judge filed on January 27, 2022 [Docket No. 31]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. Docket No. 31 at 16; see also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on January 27, 2022. 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

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). 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 [Docket No. 31] is ACCEPTED; 2. Defendants’ Motion to Dismiss Amended Complaint [Docket No. 20] is GRANTED; 3. Plaintiff’s § 1983 claims against the State of Colorado, plaintiff’s claims for money damages against defendant Phil Weiser in his official capacity, and plaintiff’s claims for retrospective declaratory and injunctive relief are barred by the Eleventh Amendment and are

DISMISSED without prejudice; 4. Plaintiff’s First Amendment claims regarding defendant Phil Weiser’s personal and campaign Facebook pages are DISMISSED without prejudice; 5. Plaintiff’s claims for equitable relief against defendant Phil Weiser in his individual capacity are DISMISSED with prejudice; 6. Defendant Phil Weiser is granted qualified immunity on plaintiff’s individual capacity claims for money damages against him; and 7. This case is closed. DATED February 11, 2022.

BY THE COURT: ____________________________ PHILIP A. BRIMMER Chief United States District Judge