Arocho v. Lappin et al

Filing 240

AMENDED 239 ORDER Overruling Objections to and Adopting Recommendation of the United States Magistrate Judge. The Recommendation of United States Magistrate Judge 234 is APPROVED AND ADOPTED. The objections stated in plaintiff's Motion - Dec laration of Objection 236 are OVERRULED. Defendants' Motion for Summary Judgment and Memorandum Brief in Support thereof 224 is GRANTED. Plaintiff's claim against defendant Lappin is DISMISSED WITH PREJUDICE; Plaintiff's claim agai nst defendant Nafziger relating to his recommendation that plaintiff be treated with a course of Interferon/Ribavirin is DISMISSED WITH PREJUDICE; and Plaintiff's remaining claims against defendant Nafziger are DISMISSED PREJUDICE. See order fo r detail. Trial Preparation Conference, currently scheduled for 6/10/2011 and the trial scheduled to commence on 6/27/2011 are VACATED. Defendants' Motion To Reset 6/10/2011 Final Trial Preparation is denied as moot. Defendants are AWARDED their costs, to be taxed by the Clerk of the Court, by Judge Robert E. Blackburn on 6/10/11. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 07-cv-02603-REB-KLM
NORBERTO PEREZ AROCHO,
Plaintiff,
v.
HARLEY LAPPIN, Director, Federal Bureau of Prisons, and
S. NAFZINGER, Clinical Director,
Defendants.

AMENDED1 ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the Recommendation of United States
Magistrate Judge [#234]2 filed April 21, 2011; and (2) the objections stated in plaintiff’s
Motion – Declaration of Objection [#236] filed May 2, 2011. I overrule the objections,
adopt the recommendation, dismiss plaintiff’s claims, and direct judgment in favor of
defendants as set forth herein.
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, objection, and applicable caselaw. Moreover, because plaintiff is

1

My prior Order Overruling Objections To and Adopting Recommendation of The United
States Magistrate Judge [#239], entered June 8, 2011, is amended to correct clerical error on page 3,
paragraph 4.b.
2

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

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)). The recommendation is detailed and well-reasoned. Contrastingly,
defendant’s objections are imponderous and without merit.3
Therefore, I 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.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#234] filed
April 21, 2011, is APPROVED AND ADOPTED as an order of this court;

3

In his objection, plaintiff alleges that his legal materials and other personal property were
confiscated on March 29, 2011, and have not been returned to him. (Plaintiff also complains of various
incidents of alleged intimidation and abuse by staff at his current place of incarceration in Missouri. Those
issue are not properly before this court and will not be addressed further.) Apparently, plaintiff makes
these representations in an attempt to explain his failure to respond to the magistrate judge’s invitation to
supplement his summary judgment response with admissible evidence suggesting a genuine issue of
material fact for trial. (See Minute Order [#231] filed March 21, 2011.) Nevertheless, plaintiff did file a
response to the motion for summary judgment, albeit one devoid of evidentiary support, prior to the date
the materials were confiscated, and, thus, could have attached evidence had there been any. Moreover,
he does not suggest that the materials taken from him contain any particular evidence that might be
relevant to the court’s determination of the recommendation and the underlying motion for summary
judgment.
Indeed, it appears plaintiff is under the misapprehension that the Tenth Circuit, in reversing this
court’s order granting defendants’ motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and remanding
for further determination, has mandated that plaintiff’s claims must be tried to a jury. The clear language
of the appellate court’s decision belies this conclusion.

2

2. That the objections stated in plaintiff’s Motion – Declaration of Objection
[#236] filed May 2, 2011, are OVERRULED;
3. That Defendants’ Motion for Summary Judgment and Memorandum Brief
in Support Thereof [#224] filed February 28, 2011, is GRANTED;
4. That plaintiff’s claims against defendant are DISMISSED as follows:
a. That plaintiff’s claim against defendant Lappin is DISMISSED WITH
PREJUDICE;
b. That plaintiff’s claim against defendant Nafziger relating to his
recommendation that plaintiff be treated with a course of
Interferon/Ribavirin is DISMISSED WITH PREJUDICE; and
c. That plaintiff’s remaining claims against defendant Nafziger are
DISMISSED PREJUDICE;
5. That judgment SHALL ENTER on behalf of defendant, Harley Lappin, Federal
Bureau of Prisons – Director, against plaintiff, Norberto Perez Arocho, as to all claims
for relief and causes of action asserted against this defendant herein; provided, that the
judgment as to these claims against this defendant SHALL BE with prejudice;
6. That judgment SHALL ENTER on behalf of defendant, Steven Nafziger
(misnamed in the caption as “S. Nafzinger”), against plaintiff, Norberto Perez, Arocho,
as to all claims for relief and causes of action asserted against this defendant herein;
provided, that the judgment as to the claim against this defendant relating to the
provision of Interferon/ Ribavirin SHALL BE with prejudice and the judgment as to all
other claims against this defendant SHALL BE without prejudice;

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7. That the Trial Preparation Conference, currently scheduled for Friday, June
10, 2011, at 4:00 p.m., as well as the trial, currently scheduled to commence on
Monday, June 27, 2011, are VACATED;
8. That defendants’ Motion To Reset June 10, 2011, Final Trial Preparation
Conference [#237] filed June 7, 2011, is DENIED AS MOOT; and
9. 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 June 10, 2011, at Denver, Colorado.
BY THE COURT:

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