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Bacote v. Berkebile

United States District Court, D. Colorado

May 19, 2014

MICHAEL BACOTE JR., Plaintiff,
v.
WARDEN D. BERKEBILE, J. COULTER (Psychology), GREEN, Education Department Specialist, A.W. WARDEN (Overseas Psychology Department), D. KRIST (SIA), CAPTAIN R. KRIST, CORRECTIONAL OFFICER A. BALSICK, and CORRECTIONAL OFFICER G. SANDUSKY, Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KRISTEN L. MIX, Magistrate Judge.

This matter is before the Court on Plaintiff's Unopposed Motion for Leave to File an Amended Complaint [#64][1] (the "Motion"). Pursuant to 28 U.S.C. ยง 636(b)(1) and D.C.COLO.LCivR 72.1(c)(3), the Motion has been referred to the undersigned [#65]. For the reasons set forth below, the Court RECOMMENDS that the Motion [#64] be GRANTED.

As an initial matter, no Scheduling Order has been entered in this case setting a deadline for amendment of pleadings. Thus, the Motion is timely.

In addition, the Motion is filed pursuant to Fed.R.Civ.P. 15(a)(2), which allows for the filing of an amended complaint with the opposing party's consent and Defendants have consented to the filing of the proposed Amended Complaint [#64-1].

The unopposed amendment seeks to drop Defendants D. Berkebile, J. Coulter, Green, A.W. Warden, D. Krist, and R. Krist and to add Defendant Federal Bureau of Prisons. A magistrate judge may issue orders on nondispositive motions only. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1461, 1462-63 (10th Cir. 1988). Whether motions to amend are dispositive is an unsettled issue. Chavez v. Hatterman, No. 06-02525-WYD-MEH, 2009 WL 82496, at *1 (D. Colo. Jan. 13, 2009) (collecting cases). When an order on a motion to amend removes or precludes a defense or claim from the case it may be dispositive. Cuenca v. Univ. of Kan., 205 F.Supp.2d 1226, 1228 (D. Kan. 2002). Thus, although the Motion is unopposed, the Court assumes that the issue is dispositive and requires a recommendation. Accordingly,

IT IS HEREBY RECOMMENDED that the Motion [#64] be GRANTED and that the Amended Complaint [#64-1] be accepted for filing.

IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).


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