Filed: Mar. 28, 2014
Latest Update: Mar. 28, 2014
Summary: ORDER RE: RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ROBERT E. BLACKBURN, Judge. The matter before me is the Recommendation of United States Magistrate Judge [#66], 1 filed February 28, 2014. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116 , 1122 (10 th Cir. 2005). 2 Applying this standard, I approve and adopt the recommendation except insofar as it recommen
Summary: ORDER RE: RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ROBERT E. BLACKBURN, Judge. The matter before me is the Recommendation of United States Magistrate Judge [#66], 1 filed February 28, 2014. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116 , 1122 (10 th Cir. 2005). 2 Applying this standard, I approve and adopt the recommendation except insofar as it recommend..
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ORDER RE: RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
ROBERT E. BLACKBURN, Judge.
The matter before me is the Recommendation of United States Magistrate Judge [#66],1 filed February 28, 2014. No objections having been filed to the recommendation, I review it only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2 Applying this standard, I approve and adopt the recommendation except insofar as it recommends dismissal of plaintiff's Fourth Amendment claim against defendant Tom Beneze in his individual capacity.
Because plaintiff is proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). Nevertheless, I agree with the magistrate judge that the Second Amended Complaint largely fails to assert plausible claims against the majority of the defendants. Any festooned reiteration on my part of the magistrate judge's exceptionally thorough examination of the pleadings and cogent application of the law to the allegations of the operative complaint would be prodigal. Suffice it to say that I find and conclude that the magistrate judge has completely vetted plaintiff's Second Amended Complaint and accurately analyzed the issues raised by and inherent to the motion to dismiss. In all but one, very minor, respect, I fully concur with her recommendation on the disposition of the claims asserted in this lawsuit.
Nevertheless, I must respectfully reject the magistrate judge's recommendation that plaintiff's Fourth Amendment claim be dismissed. As the magistrate judge herself acknowledged, defendants offered no argument in their motion regarding this claim. (See Recommendation at 31.) Plaintiff therefore was not put on notice that this claim was contested and might be in jeopardy of dismissal. It would be unfair — especially in light of plaintiff's pro se status — to address, much less dismiss, this claim when it was not fairly put at issue in the first instance.
I thus find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted in all particulars, except to the extent it is recommended that plaintiff's Fourth Amendment claim be dismissed for failure to state a claim.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#66], filed February 28, 2014, is APPROVED AND ADOPTED IN PART and respectfully REJECTED IN PART, as follows:
a. That the recommendation respectfully is REJECTED insofar as it recommends dismissal of plaintiff's Fourth Amendment claim against Lt. Tom Beneze; and
b. That in all other respects, the recommendation is APPROVED AND ADOPTED as an order of this court;
2. That defendants' Motion To Dismiss Amended Complaint[#34], filed June 12, 2013, is GRANTED IN PART and DENIED IN PART, as follows:
a. That the motion is GRANTED as follows:
(1) That the following claims are DISMISSED WITH PREJUDICE:
(a) Plaintiff's claim for misprison against defendant Correctional Officer Marquez; and
(b) All claims for declaratory relief as against all defendants in their official and individual capacities; and
(2) That the following claims are DISMISSED WITHOUT PREJUDICE:
(a) All claims seeking monetary relief against all defendants in their official capacities;
(b) All claims alleging violations of the Eighth Amendment as against defendants, Timme, Morgan, Bernes, McCall, Garcia,3 and Giganti, in their individual capacities;
(c) All claims alleging violations of the First Amendment as against defendants, Beneze, Viola, Miller, and Worthen, in their individual capacities;
(d) All claims alleging both violations of both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment as against defendants, Beneze, Viola, Miller, and Worthen, in their individual capacities; and
(e) All claims against defendants, Unknown Graveyard Duty Officer and F.C.F., Unknown F.C.F. Cellhouse 5 Correctional Officers, and Unknown F.C.F. Health Services Administrator, in their individual capacities; and
b. That the motion is in all other respects DENIED;4
3. That at the time judgment enters, judgment SHALL ENTER as follows:
a. That judgment WITH PREJUDICE shall enter:
(1) On behalf of defendant, Correctional Officer Marquez, in his individual capacity, against plaintiff, James Faircloth, as to plaintiff's claim for misprison against him; and
(2) On behalf of all defendants against plaintiff, James Faircloth, on all claims seeking declaratory relief against them in their official and individual capacities;
b. That judgment WITHOUT PREJUDICE shall enter:
(1) On behalf of all defendants against plaintiff, James Faircloth, on all claims seeking money damages against them in their official capacities;
(2) On behalf of defendants, Rae Timme, Warden; Gary Morgan, Mental Health Clinician/Designee; Bernes, Chief Mental Health Clinician/Designee; Garcia, Mental Health Clinician/Designee; Jacqueline McCall, Administrative Head/Designee; and Captain Joseph Giganti, all in their individual capacities, against plaintiff, James Faircloth, as to plaintiff's claims arising under the Eighth Amendment;
(3) On behalf of defendants, Lt. Tom Beneze; Sgt. Viola; Correctional Officer Miller; and Lt. Linda Worthen, all in their individual capacities, against plaintiff, James Faircloth, as to plaintiff's claims arising under the First and Fourteenth Amendments; and
(4) On behalf of defendants, Unknown Graveyard Duty Officer and F.C.F., Unknown F.C.F. Cellhouse 5 Correctional Officers, and Unknown F.C.F. Health Services Administrator, in their individual capacities, against plaintiff, James Faircloth, as to all claims against them in their individual capacities; and
4. That defendants, Rae Timme, Warden; Gary Morgan, Mental Health Clinician/Designee; Bernes, Chief Mental Health Clinician/Designee; Garcia, Mental Health Clinician/Designee; Jacqueline McCall, Administrative Head/Designee; Captain Joseph Giganti; Sgt. Viola; Correctional Officer Miller; Lt. Linda Worthen; Unknown Graveyard Duty Officer and F.C.F., Unknown F.C.F. Cellhouse 5 Correctional Officers, and Unknown F.C.F. Health Services Administrator, are DROPPED as named parties to this action, and the case caption AMENDED accordingly.
