Opinion
Civil Action No. 1:18-cv-03233-DDD-MEH
05-19-2020
JOHNNY LOPEZ, JR., Plaintiff, v. SARA GONZALES, Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S RECOMMENDATION AND DISMISSING CASE
Before the Court is the recommendation [Doc. 66] of United States Magistrate Judge Michael E. Hegarty, in which he recommends that the Court grant Defendant Sara Gonzales's Motion to Dismiss [Doc. 47]. The recommendation states that the parties may file objections to it within fourteen days after being served with a copy. [Doc. 66 at 17 n.2 (citing Fed. R. Civ. P. 72).] On April 16, 2020, the recommendation was served on Plaintiff Johnny Lopez, Jr. by mail to his then address of record, and was served electronically on Defendant. [Notice of Elec. Filing for Doc. 66.]
On April 25, 2020, Plaintiff notified the Court that his address had changed as of April 13, 2020, and on May 8, 2020, the recommendation that had been mailed to Plaintiff's previous address was returned to the Court by the U.S. Postal Service with the notation "RETURN TO SENDER UNABLE TO FORWARD." [Notice of Change of Address & Req. for Extension, Doc. 67; Mail Returned as Undeliverable, Doc. 70.] Service of the recommendation was complete upon mailing on April 16, 2020, and Plaintiff's nonreceipt of the recommendation does not affect the validity of service by mail. And in any case, Plaintiff has since registered for electronic filing and informed the Court that he received and reviewed the recommendation electronically on April 24, 2020. [Notice of Change of Address & Req. for Extension, Doc. 67 at ¶ 7.] Plaintiff requested an extension of time to file objections to the recommendation, and the Court granted that request, extending the deadline to May 14, 2020. [See id. at ¶ 8; Order Granting Extension, Doc. 69.]
See Fed. R. Civ. P. 5(b)(2)(C) (service complete upon mailing to last known address); Local Civ. R. 5.1(c) ("Notice of change of . . . mailing address . . . of an unrepresented prisoner or party shall be filed not later than five days after the change."); Theede v. U.S. Dep't of Labor, 172 F.3d 1262, 1266-67 (10th Cir. 1999) (service complete upon mailing to address of record where pro se plaintiff had not notified court of new address).
Nevertheless, no party has objected to the recommendation. In the absence of a timely objection, the Court may review a magistrate judge's recommendation under any standard it deems appropriate. Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150, 154 (1985)). In this matter, the Court has reviewed the recommendation to satisfy itself that there is "no clear error on the face of the record." Fed. R. Civ. P. 72(b) Advisory Committee Notes. The recommendation carefully reviews the procedural history of the case and the allegations in Plaintiff's amended complaint [Doc. 26], and properly applies the governing law to the remaining claim against Defendant Gonzales. Based on its 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 [Doc. 66] is ACCEPTED and ADOPTED;
Defendant's Motion to Dismiss [Doc. 47] is GRANTED; and
Plaintiff's claim against Defendant Sara Gonzales is DISMISSED. The Clerk of Court is directed to close this case. DATED: May 19, 2020
BY THE COURT:
/s/_________
Hon. Daniel D. Domenico