Duncan v. McGill et al

Filing 54

ORDER ADOPTING RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE: The objections stated in the plaintiffs Motion for Reconsideration of Recommendation To Dismiss 50 filed 11/25/2008, are OVERRULED. The magistrate judges Recommendation on Motion To Dismiss Complaint 49 , filed 11/14/2008, is APPROVED AND ADOPTED. The defendants Motion To Dismiss Complaint [#40] filed 06/19/2008 is GRANTED IN PART. The defendants Motion To Dismiss Complaint 40 filed 06/19/2008, is DENIED otherwise by Judge Robert E. Blackburn on 02/23/2009.(sah, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 08-cv-00296-REB-MJW JAMES R. DUNCAN, Plaintiff, v. McGILL, SCOTT, COLE, ORTIZ, LAPORTE, DeCESARO, and DENNINGTON, Defendants. ORDER ADOPTING RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE Blackburn, J. This matter is before me on the following: (1) the defendants' Motion To Dismiss Complaint [#40] filed June 19, 2008, 2008; and (2) the magistrate judge's Recommendation on Motion To Dismiss Complaint [#49] filed November 14, 2008. The plaintiff filed a document captioned as Motion for Reconsideration of Recommendation To Dismiss [#50] filed November 25, 2008. The plaintiff objects to the bases cited by the magistrate judge in support of the recommendation that certain of the plaintiff's claims be dismissed. I read the plaintiff's motion for reconsideration [#50] as a statement of the plaintiff's objections to the magistrate judge's recommendation under 28 U.S.C. 636(b)(1)(C) and FED. R. CIV. P. 72(b). 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 I have considered carefully the recommendation, 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, ___, 127 S. Ct. 2197, 2200 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The recommendation is detailed and well-reasoned. Finding no error in the magistrate judge's reasoning and recommended disposition, 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 objections stated in the plaintiff's Motion for Reconsideration of Recommendation To Dismiss [#50] filed November 25, 2008, are OVERRULED; 2. That the magistrate judge's Recommendation on Motion To Dismiss Complaint [#49], filed November 14, 2008, is APPROVED AND ADOPTED as an order of this court; 3. That the defendants' Motion To Dismiss Complaint [#40] filed June 19, 2008, is GRANTED IN PART as follows; 4. That claims one, two, and five, as alleged in the plaintiff's complaint [#13] filed March 20, 2008, are DISMISSED under FED. R. CIV. P. 12(b)(6) for failure to state a claim on which relief can be granted; 5. That claim four, as alleged in the plaintiff's complaint [#13] filed March 20, 2008, is DISMISSED as to defendant, DeCessaro, under FED. R. CIV. P. 12(b)(6) for 2 failure to state a claim on which relief can be granted; and 6. That the defendants' Motion To Dismiss Complaint [#40] filed June 19, 2008, is DENIED otherwise. Dated February 23, 2009, at Denver, Colorado. BY THE COURT: 3

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