Benge v. Pounds et al

Filing 54

ORDER Adopting and Approving 37 Report and Recommendations. Pla's Third Objection to Dfts Motion to Dismiss Second Amended Prisoner Complaint is OVERRULED; granting 34 Dfts Motion to Dismiss; That plaintiff' s claims against defendants are DISMISSED WITH PREJUDICE for failure to state claims on which relief may be granted. Signed by Judge Robert E. Blackburn on 2/7/08.(erv, )

Benge v. Pounds et al

Doc. 54

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 07-cv-01849-REB-MEH EDW ARD FRANCIS BENGE, Plai nti ff, v. DR. RICHARD A. POUNDS, M.D., and DR. JOHN R. DEQUARDO, M.D., CMHIP Superintendent, Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Blackburn, J. The matters before me are (1) the Recommendation on Defendants' Motion To Dismiss [#37], filed December 12, 2007; and (2) plaintiff's Third Objection to Defendants' Motion To Dismiss Second Amended Prisoner Complaint [#43], filed December 21, 2007. I overrule the objections, adopt the recommendation, and grant defendants' motion to dismiss. As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed, and have considered carefully the recommendation, objections, and applicable case law. In addition, 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, ___ U.S.___, 127 S. Ct. 2197, 2200 (2007); Andrews v. Heaton, 483 F.3d

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1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). The recommendation is detailed and well-reasoned. Plaintiff's objections thereto are imponderous and without merit. Therefore, I find and conclude that the arguments advanced, authorities cited, findi ngs of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted.1 THEREFORE, IT IS ORDERED as follows: 1. That the Recommendation on Defendants' Motion To Dismiss [#37], filed December 12, 2007, is APPROVED AND ADOPTED as an order of this court; 2. That plaintiff's Third Objection to Defendants' Motion To Dismiss Second Amended Prisoner Complaint [#43], filed December 21, 2007, is OVERRULED; 3. That Defendants' Motion To Dismiss Second Amended Prisoner Complaint [#34], filed November 30, 2007, is GRANT ED; 4. That plaintiff's claims against defendants are DISMISSED WITH PREJUDICE for failure to state claims on which relief may be granted; 5. That judgment SHALL ENTER for defendants, Dr. Richard A. Pounds, M.D., and Dr. John R. DeQuardo, M.D., CMHIP Superintendent, against plaintiff, Edward Francis Benge, on all claims and causes of action; and

I note that although plaintiff attempted to file a Third Amended Complaint ([#50], filed Decem ber 26, 2007), presumably to attempt to address the deficiencies noted in the motion to dismiss, the complaint was struck for failure to obtain leave of court to file an amended pleading (see Minute Order [#52], filed January 14, 2008). Plaintiff did not thereafter seek leave of court to file a Third Am ended Complaint, and the deadline for amendment of the pleadings has now expired (see Minute Order [#40], filed December 19, 2007) (setting January 31, 2007, deadline for filing of amended com plaint).

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6. That defendants 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. Dated February 7, 2008, at Denver, Colorado. BY THE COURT: s/ Robert E. Blackburn Robert E. Blackburn United States District Judge

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