Harper v. Federal Prison Industries, Inc. et al

Filing 183

ORDER. The Recommendation of United States Magistrate Judge 148 filed 02/09/2010, is APPROVED AND ADOPTED. The Defendants Motion To Dismiss Plaintiffs Amended Prisoner Complaint Pursuant to FED. R. CIV. P. 12(b)(6) 144 filed 12/23/2009, is GRA NTED. The Recommendation of United States Magistrate Judge 157 filed 03/10/2010, is APPROVED AND ADOPTED. The plaintiffs On Motion Requesting Leave By This Honorable Court To Grant This Motion Pursuant To the Federal Rules of Civil Procedures Rule 15(a) To Amend 152 filed 02/22/2010, is DENIED. The plaintiffs objections [#153] filed 02/22/2010, and 159 filed 03/25/2010, which address the two recommendations [148 & 157], are OVERRULED AND DENIED. The objections stated in Plaintiffs Object ion To Defendants Misunderstanding for Requesting for Expert Witnesse (sic) Testimony 165 filed 04/12/2010, are OVERRULED AND DENIED. JUDGMENT SHALL ENTER in favor of the defendants, Norman S. Rosenthal, M.D. and P. Urbano, against the plaintiff, Donald Alton Harper. The defendants, Norman S. Rosenthal, M.D. and P. Urbano, are AWARDED their costs. This case is DISMISSED and CLOSED. By Judge Robert E. Blackburn on 09/10/2010.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 07-cv-00750-REB-KMT DONALD ALTON HARPER, Plaintiff, v. P. URBANO, P.A., and NORMAN S. ROSENTHAL, M.D., Defendants. ORDER ADOPTING RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE & OVERRULING RULE 72 OBJECTION Blackburn, J. This matter is before me on the following: (1) Defendants' Motion To Dismiss Plaintiff's Amended Prisoner Complaint Pursuant to FED. R. CIV. P. 12(b)(6) [#144]1 filed December 23, 2009; (2) the Recommendation of United States Magistrate Judge [#148] filed February 9, 2010; (3) the plaintiff's On Motion Requesting Leave By This Honorable Court To Grant This Motion Pursuant To the Federal Rules of Civil Procedure's Rule 15(a) To Amend [#152] filed February 22, 2010; (4) the Recommendation of United States Magistrate Judge [#157] filed March 10, 2010; and (5) Plaintiff's Objection To Defendants Misunderstanding for Requesting for Expert Witnesse (sic) Testimony [#165] filed April 12, 2010. The plaintiff filed objections [#153

"[#144]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

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& #159] addressing the two recommendations, and the defendants filed responses [#155 & #163] to the objections. The plaintiff filed and objection [#165] to an order of the magistrate judge, and the defendants filed a response [#166]. I approve and adopt the two recommendations, overrule the plaintiff's objections, grant the motion to dismiss, and deny the plaintiff's motion to amend. As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the magistrate judge's recommendations to which the plaintiff has objected, and I have considered carefully the recommendations, objections, and applicable law. In addition, because the 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 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). In her February 9, 2010, recommendation [#148], the magistrate judge recommends that the plaintiff's motion to dismiss [#144] be granted. The plaintiff seeks to assert a claim under the Eighth Amendment concerning an ankle injury he received while in prison and the medical treatment he was provided as a result of this injury. I agree with the magistrate judge's analysis and her conclusion that the motion to dismiss should be granted. After the magistrate judge issued her recommendation [#148], the plaintiff filed his motion [#152] to amend his complaint. In her second recommendation [#157], the magistrate judge recommends that the plaintiff's motion [#152] to amend his complaint be denied. I agree with the magistrate judge's analysis and her conclusion that the motion to amend should be granted. The plaintiff's objections [#153 & #159] to the recommendations do not state valid objections to the recommendations. I read the plaintiff's objection [#165] as an objection to the order [#162] of the 2

magistrate judge. In her order [#162], the magistrate judge denied the plaintiff's Motion for Expert Witness Testimony [#162] filed April 1, 2010. The plaintiff's objection concerns a non-dispositive matter that was referred to the magistrate judge for resolution. Under 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(a), I may modify or set aside any portion of a magistrate judge's order which I find to be clearly erroneous or contrary to law. Nothing about the magistrate judge's order [#162] is clearly erroneous or contrary to law. The plaintiff's objection [#165] is overruled and denied. THEREFORE, IT IS ORDERED as follows: 1. That the Recommendation of United States Magistrate Judge [#148] filed February 9, 2010, is APPROVED AND ADOPTED as an order of this court; 2. That the Defendants' Motion To Dismiss Plaintiff's Amended Prisoner Complaint Pursuant to FED. R. CIV. P. 12(b)(6) [#144] filed December 23, 2009, is GRANTED; 3. That the Recommendation of United States Magistrate Judge [#157] filed March 10, 2010, is APPROVED AND ADOPTED as an order of this court; 4. That the plaintiff's On Motion Requesting Leave By This Honorable Court To Grant This Motion Pursuant To the Federal Rules of Civil Procedure's Rule 15(a) To Amend [#152] filed February 22, 2010, is DENIED; 5. That the plaintiff's objections [#153] filed February 22, 2010, and [#159] filed March 25, 2010, which address the two recommendations [#148 & #157], are OVERRULED AND DENIED; 6. That the objections stated in Plaintiff's Objection To Defendants Misunderstanding for Requesting for Expert Witnesse (sic) Testimony [#165] filed April 12, 2010, are OVERRULED AND DENIED; 3

7. That JUDGMENT SHALL ENTER in favor of the defendants, Norman S. Rosenthal, M.D. and P. Urbano, against the plaintiff, Donald Alton Harper; 8. That the defendants, Norman S. Rosenthal, M.D. and P. Urbano, are AWARDED their costs to be taxed by the Clerk of the Court pursuant to FED. R. CIV. P. 54(d)(1) and D.C.COLO.LCivR 54.1; and 9. That this case is DISMISSED and CLOSED. Dated September 10, 2010, at Denver, Colorado. BY THE COURT:

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