Short v. Trujillo et al

Filing 70

ORDER APPROVED AND ADOPTED 68 Report and Recommendations. granting in part and denying in part 48 Defendants' Motion to Dismiss; granting in part and denying in part 52 Plaintiff's Motion to Add Sergeant Shad Draper as a Defendant; T hat defendant, Aristedes W. Zavaras, is DROPPED as a named party defendant to this action, and the case caption is AMENDED accordingly; That plaintiff SHALL FILE an amended complaint in accordance with this Order Adopting Recommendations of the United States Magistrate Judge on or before September 11, 2009 by Judge Robert E. Blackburn on 8/10/09.(erv, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 08-cv-02209-REB-MJW TROY A. SHORT, Plaintiff, v. CAPTAIN A. J. TRUJILLO, LIEUTENANT CORY BURKET, and LIEUTENANT JAMES MAESTAS, Defendants. ORDER ADOPTING RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE Blackburn, J. The matters before me are the magistrate judge's Recommendations on Defendants' Motion To Dismiss (Docket No. 48) and Plaintiff's Motion To Add Sergeant Shad Draper as a Defendant (Docket No. 52) [#68], filed July 10, 2009. No objections having been filed to the recommendations, I review them only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).1 Finding no such error in the magistrate judge's recommended disposition, I find and conclude that the recommendations should be approved and adopted.2 This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122. Although the magistrate judge's substantive discussion recommends dismissing plaintiff's first claim for relief (see Recommendations at 13-14), that recommendation does not appear in the ultimate articulation of the magistrate judge's conclusions (see id. at 23). Nevertheless, because it appears clear 2 1 THEREFORE, IT IS ORDERED as follows: 1. That the magistrate judge's Recommendations on Defendants' Motion To Dismiss (Docket No. 48) and Plaintiff's Motion To Add Sergeant Shad Draper as a Defendant (Docket No. 52) [#68], filed July 10, 2009, are APPROVED AND ADOPTED as orders of this court; 2. That defendants' Motion To Dismiss [#48], filed February 2, 2009, is GRANTED IN PART and DENIED IN PART; 3. That the motion to dismiss [#48] is GRANTED with respect to plaintiff's Claim One, which claim is DISMISSED WITH PREJUDICE; 4. That the motion to dismiss [#48] is GRANTED further with respect to plaintiff's claims against defendant, Aristedes W. Zavaras, and those claims are DISMISSED WITH PREJUDICE; 5. That defendant, Aristedes W. Zavaras, is DROPPED as a named party defendant to this action, and the case caption is AMENDED accordingly; 6. That in all other respects, the motion to dismiss is DENIED; 7. That plaintiff's Motion To Add Sergeant Shad Draper as Defendant [#52], filed February 12, 2009, is GRANTED IN PART and DENIED IN PART; 8. That plaintiff's motion to amend the complaint [#52] is GRANTED insofar as plaintiff seeks to join and include Shad Draper as a party defendant and to assert a claim against Draper for his alleged failure to act on plaintiff's allegation that another that the magistrate judge intended to recommend dismissal of Claim One, and that recommendation is justified by the facts and law, I will dismiss that claim as well. 2 inmate had broken into his locker box and shown to other inmates a letter demonstrating plaintiff's cooperation with the Fremont County, Colorado, Sheriff's Office in their investigation of a plot to escape the Fremont County Jail and murder two drug enforcement agents, as set forth in plaintiff's motion to amend [#52] 2 at 1; 9. That plaintiff SHALL FILE an amended complaint in accordance with this Order Adopting Recommendations of the United States Magistrate Judge on or before September 11, 2009; and 10. That in all other respects, plaintiff's motion to amend [#52] is DENIED. Dated August 10, 2009, at Denver, Colorado. BY THE COURT: 3

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