Merchant v. Williams et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 22-cv-01682-CNS-NRN
THOMAS PHIL MERCHANT,
Plaintiff,
v.
BARRY GOODRICH,
CHRISTIANNA CAPPELLUCCI,
BRIAN LOVATO,
ASHLEY MACEK, and
NAOMI HENSEN,
Defendants.
ORDER
Before 	the 	Court 	is 	United 	States 	Magistrate 	Judge 	N. 	Reid 	Neureiter’s
Recommendation to grant Defendants’ Motion for Summary Judgment. ECF No. 74
(summary judgment motion); ECF No. 87 (Recommendation). Plaintiff did not object to
the Recommendation. More critically, Plaintiff did not respond to the motion for summary
judgment—even though Magistrate Judge Neureiter extended Plaintiff’s deadline to
respond three times. For the reasons below, the Court AFFIRMS and ADOPTS the
Recommendation, GRANTS Defendants’ motion for summary judgment, and dismisses
Plaintiffs’ claims without prejudice.
Case No. 1:22-cv-01682-CNS-NRN Document 88 filed 01/24/25 USDC Colorado
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I. 	SUMMARY FOR PRO SE PLAINTIFF
At the end of his Recommendation, Magistrate Judge Neureiter advised that you
had 14 days after service of the Recommendation to file a written objection. ECF No. 87
at 14. You did not file an objection or otherwise respond within that window. Even if you
had filed an objection, any arguments would have been waived because of your failure to
respond to Defendants’ motion for summary judgment. See United States v. Garfinkle,
261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in
objections to the magistrate judge’s report are deemed waived.”); Marshall v. Chater, 75
F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for the first time in objections to the
magistrate judge’s recommendation are deemed waived.”)
The Court has reviewed the Recommendation and has determined that it is
correct. The Court will explain why it is adopting the Recommendation below, including a
discussion of the legal authority that supports this conclusion. Because the Court is
affirming 	Magistrate Judge 	Neureiter’s 	Recommendation 	and granting 	Defendants’
motion for summary judgment, your claims against Defendants are dismissed without
prejudice, which means that you may refile your claims, if you can satisfy the procedural
and jurisdictional requirements. See Crowe v. Servin, 723 F. App’x 595, 598 (10th Cir.
2018) (“A dismissal without prejudice just means that the plaintiff isn’t barred from refiling
the lawsuit within the applicable limitations period.” (citations and quotations omitted)).
II. 	BACKGROUND
Magistrate Judge Neureiter provided a thorough overview of the factual and
procedural background of the case, noting the three extensions he granted Plaintiff to
Case No. 1:22-cv-01682-CNS-NRN Document 88 filed 01/24/25 USDC Colorado
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respond to Defendants’ motion for summary judgment. See ECF No. 87 at 2–6. The Court
will not repeat that background here.
III. 	LEGAL STANDARD & ANALYSIS
When—as is the case here—a party does not object to a Magistrate Judge’s
Recommendation, the Court “may review a magistrate [judge]’s report under any standard
it deems appropriate.” Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)
(citing Thomas v. Arn, 474 U.S. 140, 150 (1985)). The Court is “accorded considerable
discretion” when reviewing “unchallenged” recommendations. Id. Here, the Court has
reviewed Magistrate Judge Neureiter’s thorough Recommendation and is satisfied that it
is sound and that there is no clear error on the face of the record.
IV. 	CONCLUSION
The 	Court 	AFFIRMS 	and 	ADOPTS 	Magistrate 	Judge 	Neureiter’s
Recommendation, ECF No. 87, in its entirety as an order of this Court. Accordingly, the
Court GRANTS Defendants’ Motion for Summary Judgment. ECF No. 74. The Final
Pretrial Conference is VACATED, and the Clerk of Court is directed to close this case.
DATED this 24th day of January 2025.
BY THE COURT:
_____________________________
Charlotte N. Sweeney
United States District Judge
BY THE C	C	COURT:
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Case No. 1:22-cv-01682-CNS-NRN Document 88 filed 01/24/25 USDC Colorado
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