IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez 

Civil Action No. 11-cv-02342-WJM-KLM

FRANKIE L. MCCONNELL,

Plaintiff,

v.

DEBRA REILLY,

Defendant.

______________________________________________________________________

ORDER ADOPTING FEBRUARY 26, 2013 RECOMMENDATION OF MAGISTRATE

JUDGE,

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

______________________________________________________________________

This matter is before the Court on the February 26, 2013 Recommendation of

United States Magistrate Judge Kristen L. Mix (the “Recommendation”) (ECF No. 47)

that Defendant’s Motion for Summary Judgment (ECF No. 42) be granted. The

Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B);

Fed. R. Civ. P. 72(b).

The Recommendation advised the parties that specific written objections were

due within fourteen days after being served with a copy of the Recommendation. (ECF

No. 47, at 10.) Despite this advisement, no objections to the Magistrate Judge’s

Recommendation have to date been filed by either party. 

The Court concludes that the Magistrate Judge’s analysis was thorough and

sound, and that there is no clear error on the face of the record with respect to the issue

of administrative exhaustion under the Prison Litigation Reform Act (“PLRA”). Resolution

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 In addition, and for reasons stated in Defendant’s Motion for Summary Judgment,

Plaintiff’s claims are indeed “wholly contradicted by the record.” (ECF No. 43) This only

reinforces the result against Plaintiff as already provided for in the Magistrate Judge’s

Recommendation under the PLRA. Accordingly, because Plaintiff cannot demonstrate a

violation of her Eighth Amendment right to medical care, Defendant is also entitled to qualified

immunity based on the first and second prongs of the relevant test. Saucier v. Katz, 533 U.S.

194, 200 (2001) quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

2 Arocho v. Lappin, 2011 WL 2292187, at *8 (D. Colo. Apr. 21, 2011) (citing Fields v.

Okla. State Penitentiary, 511 F.3d 1109, 1113 (10th Cir. 2007) (noting that dismissal of

unexhausted claims on summary judgment should be without prejudice.)

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of that issue is dispositive of the instant matter.1 See Fed. R. Civ. P. 72(b) advisory

committee’s note (“When no timely objection is filed, the court need only satisfy itself that

there is no clear error on the face of the record in order to accept the recommendation.”);

see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of

timely objection, the district court may review a magistrate’s report under any standard it

deems appropriate.”).

In accordance with the foregoing, the Court ORDERS as follows:

(1) The Magistrate Judge’s Recommendation (ECF No. 47) is ADOPTED in its

entirety; 

(2) Defendant’s Motion for Summary Judgment (ECF No. 42) is GRANTED;

(3) Plaintiff’s Eighth Amendment claim against Defendant is DISMISSED WITHOUT

PREJUDICE;2

 and

(4) The Clerk shall enter judgment in favor of Defendant. Each party shall bear her

own costs.

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Dated this 29th day of March, 2013.

BY THE COURT:

_________________________ 

William J. Martínez 

United States District Judge

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