IN THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLORADO 

Senior Judge Wiley Y. Daniel

Civil Action No. 11-cv-02384-WYD-CBS 

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 

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. 

Case 1:11-cv-02384-WYD-CBS Document 116 Filed 09/19/14 USDC Colorado Page 1 of 3
- 2 - 

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. 

 2

 Note, 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). 

Case 1:11-cv-02384-WYD-CBS Document 116 Filed 09/19/14 USDC Colorado Page 2 of 3
- 3 - 

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. 

Dated: September 19, 2014. 

BY THE COURT: 

s/ Wiley Y. Daniel 

WILEY Y. DANIEL, 

SENIOR UNITED STATES DISTRICT JUDGE

Case 1:11-cv-02384-WYD-CBS Document 116 Filed 09/19/14 USDC Colorado Page 3 of 3