IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02192-REB-CBS 

MARJORIE A. KESSLING, and

TRENTON H. PARKER,

Plaintiffs,

v.

BETHANY SALZMAN, individually and in her official capacity, and

GARY SCHWARTZ, individually and in his official capacity,

Defendants. 

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE 

Magistrate Judge Craig B. Shaffer

This civil action comes before the court on: (1) Plaintiff, Mr. Parker’s, “Motion to

Amended [sic] Civil Rights Complaint for Violations of Plaintiff’s Fourth Amendment Rights;”

and (2) Mr. Parker’s “Response and Motion to Withdraw Plaintiff’s Second Amended

Complaint; (2) Motion to Proceed with Discovery; (3) Motion to Set Trial Date; (4) Motion to

Dismiss Plaintiff Kessling from this Case; (5) Motion for Summary Judgment; (6) Motion to

Order Disclosure of Defendants’ legal Fees and Expenses; (7) Notice of Weld County and

District Court Proceedings; and (8) Motion to Allow Late Fil[ ]ing for Good Cause.” Pursuant

to the Order of Reference dated August 24, 2011 (Doc. # 2) and the memoranda dated

November 14, 2012 (Doc. # 38) and January 16, 2013 (Doc. # 43), these matters were

referred to the Magistrate Judge. The court having reviewed the Motions, Defendants’

Responses (Docs. # 39, # 42), the proceedings held on December 1, 2011 and October 31,

2012, the pleadings, the entire case file, and the applicable law and being sufficiently advised

in the premises, IT IS ORDERED that:

1. Mr. Parker’s “. . . Motion to Allow Late Fil[ ]ing . . . ” (filed January 8, 2013) (Doc.

# 41) is GRANTED. Mr. Parker’s Reply was due on January 4, 2013 (see Minute Order (Doc.

# 40) and was filed on January 8, 2013. 

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Mr. Parker seeks to dismiss Ms. Kessling form the case and Defendants do not object. 1

(See Doc. # 42 at 2 of 6, D.). The court held a Preliminary Scheduling Conference on October 31,

2012, at which Ms. Kessling appeared via telephone. (See Courtroom Minutes/Minute Order (Doc. #

36)). At that conference, Ms. Kessling requested to be dismissed from this civil action and stated that

she would sign a stipulated motion to dismiss all of her claims. (See id.). As Defendants had filed an

Answer, they sent Ms. Kessling a stipulation to dismiss, but have received no response from her. (See

Doc. # 42 at 2 of 6, D.). 

2. Mr. Parker’s “. . . Motion to Withdraw . . .” (filed January 8, 2013) (Doc. # 41) is

GRANTED. 

3. Mr. Parker’s “Motion to Amended [sic] Civil Rights Complaint for Violations of

Plaintiff’s Fourth Amendment Rights” (filed November 13, 2012) (Doc. # 37) is WITHDRAWN.

4. Mr. Parker’s “. . .Motion for Summary Judgment . . .” (filed January 8, 2013)

(Doc. # 41) is DENIED WITHOUT PREJUDICE as premature. 

5. Mr. Parker’s “. . . Motion to Proceed with Discovery . . .” (filed January 8, 2013)

(Doc. # 41) is GRANTED. A further Preliminary Scheduling Conference is hereby set on

Friday, February 22, 2013 at 9:15 a.m. before Magistrate Judge Craig B. Shaffer in

Courtroom A-402, Fourth Floor of the Alfred A. Arraj U.S. Courthouse, 901 19th Street,

Denver, Colorado, 80294. 

6. Mr. Parker’s “. . . Motion to Set Trial Date . . .” (filed January 8, 2013) (Doc. #

41) is DENIED WITHOUT PREJUDICE as premature. A trial date will be set by District

Judge Robert E. Blackburn at the conclusion of the Preliminary Scheduling Conference set

on Friday, February 22, 2013 at 9:15 a.m.

7. Mr. Parker’s “. . . Motion to Order Disclosure of Defendants’ Legal Fees and

Expenses . . .” (filed January 8, 2013) (Doc. # 41) is DENIED. 

Further, IT IS RECOMMENDED that:

1. The Motion to Dismiss Party, Ms. Kessling, be GRANTED and Ms. Kessling be

dismissed. 

1

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Advisement to the Parties 

Within fourteen days after service of a copy of the Recommendation, any party may

serve and file written objections to the Magistrate Judge’s proposed findings and

recommendations with the Clerk of the United States District Court for the District of

Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th

Cir. 1995). A general objection that does not put the District Court on notice of the basis for

the objection will not preserve the objection for de novo review. “[A] party’s objections to the

magistrate judge’s report and 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 Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057,

1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the

District Judge of the Magistrate Judge’s proposed findings and recommendations and will

result in a waiver of the right to appeal from a judgment of the district court based on the

proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195

F.3d 573, 579-80 (10th Cir. 1999) (District Court’s decision to review a Magistrate Judge’s

recommendation de novo despite the lack of an objection does not preclude application of the

“firm waiver rule”); International Surplus Lines Insurance Co. v. Wyoming Coal Refining

Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the

Magistrate Judge’s order, cross-claimant had waived its right to appeal those portions of the

ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file

objections, plaintiffs waived their right to appeal the Magistrate Judge’s ruling). But see,

Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not

apply when the interests of justice require review). 

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DATED at Denver, Colorado, this 16th day of January, 2013.

BY THE COURT:

 s/Craig B. Shaffer 

United States Magistrate Judge 

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