Antelope v. Bureau of Prisons et al

Filing 85

ORDER. The recommendation 81 is accepted. Defendants the United States, the Bureau of Prisons (BOP), and Kellars Motion to Dismiss 69 is granted in part and denied without prejudice in part by Judge Lewis T. Babcock on 02/25/2009.(sah, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO LEWIS T. BABCOCK, JUDGE Civil Case No. 08-cv-00649-LTB-MEH DAVID EARL ANTELOPE, Plaintiff, v. UNITED STATES OF AMERICA, BUREAU OF PRISONS, J.M. WILNER, DR. POLLAND, DR. KELLAR, and SUSAN BONFIGLIO, Defendants. ________________________________________________________________________ ORDER ________________________________________________________________________ This case is before me on the recommendation of the Magistrate Judge on Defendants the United States, the Bureau of Prisons (BOP), and Kellar's Motion to Dismiss Prisoner Complaint (Doc 39) and on Defendants Wilner, Polland, and Bonfiglio's Motion to Dismiss Plaintiff's Amended Complaint (Doc 69). The Recommendation was issued and served on February 4, 2009 (Doc 81). Plaintiff has failed to file specific written objections to the Magistrate Judge's recommendation and is therefore barred from de novo review. Defendants filed an Objection (Doc 83) to the Recommendation indicating that they do not objection to the dismissal of Claims Two and Three. They also stated that they do not object to dismissing Claim One with leave to replead, but only so long as Plaintiff's Second

Amended Complaint is limited to an Eighth Amendment claim that alleges sufficient facts to state Bivens claims against Defendants Wilner, Polland, Kellar, and Bonfiglio and an injunctive relief claim against the United States. Accordingly, it is ORDERED that the recommendation is accepted as follows: Defendants the United States, the Bureau of Prisons (BOP), and Kellar's Motion to Dismiss is granted in part and denied without prejudice in part as follows: 1. 2. 3. 4. 5. 6. Plaintiff's Claims Two and Three are dismissed; Plaintiff's Claim One against the BOP is dismissed; Plaintiff's Claim One against Defendant Kellar in his official capacity is dismissed; Plaintiff's Claim One for money damages against the United States is dismissed; Plaintiff's Claim One for injunctive relief against Defendant Kellar is dismissed; and Plaintiff is permitted to pursue his Claim One for money damages against Defendant Kellar in his individual capacity and for injunctive relief against the United States with an opportunity to submit a Second Amended Complaint describing the allegations with more specificity within thirty (30) days from the date of this Order.

Defendants Wilner, Polland, and Bonfiglio's Motion to Dismiss Plaintiff's Amended Complaint is granted in part and denied without prejudice in part as follows: 1. 2. 3. Plaintiff's Claims Two and Three are dismissed; Plaintiff's Claim One for injunctive relief against Defendants Wilner, Polland, and Bonfiglio are dismissed; Plaintiff's Claim One against Defendants Wilner, Polland, and Bonfiglio in their official capacities are dismissed; and

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Plaintiff is permitted to pursue his Claim One for money damages against Defendants Wilner, Polland, and Bonfiglio in their individual capacities with an opportunity to submit a Second Amended Complaint describing the allegations with more specificity within thirty (30) days from the date of this Order.

BY THE COURT: s/Lewis T. Babcock Lewis T. Babcock, Judge DATED: February 25, 2009

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