Thomas v. Roybal

Opinion

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

Civil Action No. 23-cv-01804-PAB-SBP

AKEEM THOMAS,

Plaintiff, v.

EL PASO COUNTY, COLORADO SHERIFF’S OFFICE, SHERIFF JOE ROYBAL, UNDERSHERIFF KRAMER, COMMANDER CORNEL, CHIEF DENO, LT. WHEELER, LT. DAVIS, SGT. DELACRETEZ, SGT. DELONG, and DEP. CABLE,

Defendants.

ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION

This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 26]. The Recommendation states that objections to the Recommendation must be filed within fourteen days after its service on the parties. Docket No. 26 at 37 n.15; see also 28 U.S.C. § 636(b)(1)(C). The Recommendation was served on September 3, 2024.1 No party has objected to the Recommendation.

1 On August 20, 2024, plaintiff filed a letter stating that his address changed to 2739 E. Las Vegas Street, Colorado Springs, CO 80906. Docket No. 25 at 1. On September 3, 2024, the court sent the Recommendation to that address. Docket No. 26. On September 5, 2024, plaintiff filed a letter stating that his address changed to Denver Reception & Diagnostic Center, P.O. Box 392004, Denver, CO 80239. Docket No. 27 at 1. However, the Colorado Department of Corrections website states that Mr. Thomas is currently being held at the Colorado Territorial Correctional Facility, P.O. Box 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.”2 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 that the Recommendation of United States Magistrate Judge [Docket No. 26] is ACCEPTED. It is further ORDERED that Defendants’ Motion to Dismiss Amended Complaint (ECF 8) pursuant to Fed. R. Civ. P. 12(b)(6) [Docket No. 23] is GRANTED in part and DENIED

in part. It is further ORDERED that claim one against defendant Deputy Cable, in his individual and official capacities, is DISMISSED with prejudice. It is further

1010, Cañon City, CO 81215. See Colorado Department of Corrections, Offender Search, https://www.doc.state.co.us/oss/. To date, plaintiff has not updated his address with the court. See D.C.COLO.LCivR.5.1(c) (“Notice of change of name, mailing address, or telephone number of an unrepresented prisoner or party shall be filed not later than five days after the change.”). To ensure that plaintiff receives a copy of this order, the Court will mail copies to both Denver Reception & Diagnostic Center and Colorado Territorial Correctional Facility. 2 This 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). 2 ORDERED that claims three and four are DISMISSED without prejudice. It is further ORDERED that the El Paso County, Colorado Sheriff’s Office, Sheriff Joe Roybal, Undersheriff Kramer, Commander Cornel, Chief Deno, Lt. Wheeler, Lt. Davis,

Sgt. Delacretez, and Sgt. Delong are dismissed from this case. DATED September 23, 2024. BY THE COURT:

PHILIP A. BRIMMER Chief United States District Judge