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Vreeland v. Huss, 18-cv-00303-PAB-SKC. (2018)

Court: District Court, D. Colorado Number: infdco20180828a91 Visitors: 17
Filed: Aug. 27, 2018
Latest Update: Aug. 27, 2018
Summary: ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION PHILIP A. BRIMMER , District Judge . This matter is before the Court on the Recommendation of United States Magistrate Judge filed on August 3, 2018 (the "Recommendation") [Docket No. 27]. On April 26, 2018, plaintiff filed a motion seeking to exceed the thirty-page limitation for a prisoner complaint that he otherwise could have filed as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1). Docket No. 12 at 1. Magistrate Judge Kathleen M
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ORDER ACCEPTING MAGISTRATE JUDGE'S RECOMMENDATION

This matter is before the Court on the Recommendation of United States Magistrate Judge filed on August 3, 2018 (the "Recommendation") [Docket No. 27]. On April 26, 2018, plaintiff filed a motion seeking to exceed the thirty-page limitation for a prisoner complaint that he otherwise could have filed as a matter of course pursuant to Fed. R. Civ. P. 15(a)(1). Docket No. 12 at 1. Magistrate Judge Kathleen M. Tafoya recommends that Claims One through Four be dismissed as improperly joined under Fed. R. Civ. P. 18, that Claim Five be accepted insofar as it relates to defendant Robert Charles Huss, that Claim Six1 be rejected as legally frivolous pursuant to 18 U.S.C. § 1915A(b), and that plaintiff's motion to exceed the page limits be denied as moot in light of the dismissal of claims reducing the amended complaint's length. Docket No. 27 at 6-7. On August 22, 2018, plaintiff filed a notice with respect to the Recommendation in which he states that he disagrees with the Recommendation, but that he "will accept" it and "file a new complaint" with respect to the claims rejected in 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) ("[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"). 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 as follows:

1. The Recommendation of United States Magistrate Judge [Docket No. 27] is accepted.

2. Plaintiff's Motion for Leave to Exceed Page Limits by Four Page on Amended Complaint Filed as Matter of Right [Docket No. 12] is DENIED as moot.

3. The Clerk of Court shall accept plaintiff's amended prisoner complaint [Docket No. 12-1] as filed.

4. Claim One through Claim Four are dismissed without prejudice pursuant to Rule 18, Claim Five is dismissed without prejudice insofar as it purports to state a claim against anyone other than Robert Charles Huss, and Claim Six is dismissed without prejudice as frivolous pursuant to 18 U.S.C. § 1915A(b).

FootNotes


1. The amended prisoner complaint contains two headings titled Claim Six, Docket No. 12-1 at 29-30, which the magistrate judge treated as a single conspiracy claim. Plaintiff does not disagree and the Court construes the two sections as a single Claim Six.
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).
Source:  Leagle

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