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Jones v. Lehmkuhl

United States District Court, D. Colorado

September 19, 2014

KEVIN FRANCIS JONES, Plaintiff,
v.
MARCUS LEHMKUHL, CITY OF COLORADO SPRINGS, COLORADO, sued individually and in their official capacities, Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

WILEY Y. DANIEL, Senior District Judge.

THIS MATTER is before the Court on Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint (DOC. 105) Pursuant to Fed.R.Civ.P. 12(B)(6) (ECF No. 106), filed November 13, 2013. This motion was referred to Magistrate Judge Shaffer, who issued an oral recommendation ("Recommendation") from the bench (ECF No. 115) on July 22, 2014, and is incorporated herein by reference. See 28 U.S.C. sec 636(b)(1), Fed.R.Civ.P. 72(b), D.C.COLO.LCivR. 72.1.

Magistrate Judge Shaffer recommended therein that the Defendant's Motion to Dismiss be denied in part and granted in part. Specifically, Magistrate Judge Shaffer recommended that the Defendant's Motion to Dismiss be denied to the extent that Jones' Fourth Amendment claims be dismissed without prejudice as they relate to his right to be free from unreasonable arrest, search, and seizure; warrantless arrest, search, and seizure; search and seizure without probable cause; and malicious prosecution. Magistrate Judge Shaffer further recommended that the Defendant's Motion to Dismiss be granted to the extent that all other claims be dismissed with prejudice. In his Recommendation, Magistrate Judge Shaffer incorporated by reference and reiterated from the bench his Recommendation on Defendants' Motion to Dismiss (ECF. No. 89), filed April 26, 2013, which was affirmed and adopted by the Court in its Order (ECF No. 104), filed September 27, 2013.

Magistrate Judge Shaffer advised the parties that written objections were due within fourteen (14) days after service of a copy of the Recommendation. Despite this advisement, no objections were filed to the Magistrate Judge's Recommendation. No objections having been filed, I am vested with discretion to review the Recommendation "under any standard [I] deem[] appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also 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"). Nonetheless, though not required to do so, I review the Recommendation to "satisfy [my]self that there is no clear error on the face of the record."[2] See FED. R. CIV. P. 72(b) Advisory Committee Notes.

Having reviewed the Recommendation (ECF No. 115), I am satisfied that there is no clear error on the face of the record. I find that the Recommendation is thorough, well-reasoned, and sound.

CONCLUSION

After careful consideration of the matters before the Court, it is

ORDERED that Magistrate Judge Shaffer's Recommendation (ECF No. 115) is AFFIRMED and ADOPTED. As such, the Defendant's Motion to Dismiss Plaintiff's Third Amended Complaint (DOC. 105) Pursuant to Fed.R.Civ.P. 12(B)(6) (ECF No. 106) is DENIED IN PART and GRANTED IN PART. The motion is DENIED to the extent that Claim One is DISMISSED WITHOUT PREJUDICE as it relates to Jones' right to be free from: (a) unreasonable arrest, search, and seizure; (b) warrantless arrest, search, and seizure; (c) search and seizure without probable cause; and (d) malicious prosecution. The motion is GRANTED to the extent that the remainder of Jones' claims are DISMISSED WITH PREJUDICE.


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