Boles v. Newth et al

Filing 97

ORDER. The magistrate judges Amended Recommendation on Plaintiffs Motion for Court To Revisit the Complaint (Docket No. 82), Plaintiffs Motion for Defendants To Be Held Personally Accountable for Judgment When it Is Rendered in the Plaintiffs Favor (Docket No. 83) and Defendants Motion for Summary Judgment (Docket No. 85) 95 filed 10/4/2011, is APPROVED AND ADOPTED. The objections stated by plaintiff in the Objection to Recommendations of the Magistrate 96 filed 10/11/2011, are OVERRULED. Plaintiffs Motion for Court To Revisit the Complaint 82 filed 7/12/2011, is DENIED. Defendants Motion for Summary Judgment 85 filed 7/15/2011 is GRANTED. Plaintiffs Motion for Defendants To Be Held Personally Accountable for Judgment When it i s Rendered in the Plaintiffs Favor 83 filed 7/12/2011 is DENIED AS MOOT. Plaintiffs remaining claims in this lawsuit are DISMISSED WITH PREJUDICE. The Trial Preparation Conference, currently scheduled for 10/21/2011, at 2:00 p.m., as well as the trial, currently scheduled to commence on 11/7/2011 are VACATED. Defendants are AWARDED their costs. By Judge Robert E. Blackburn on 10/12/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 09-cv-00223-REB-MJW
RUSSELL M. BOLES,
Plaintiff,
v.
DEVIN NEWTH,
M. PECK,
ABNEY, and
C.L. HUMPHREY,
Defendants.

ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) the magistrate judge’s Amended
Recommendation on Plaintiff’s Motion for Court To Revisit the Complaint (Docket
No. 82), Plaintiff’s Motion for Defendants To Be Held Personally Accountable for
Judgment When it Is Rendered in the Plaintiff’s Favor (Docket No. 83) and
Defendants’ Motion for Summary Judgment (Docket No. 85) [#95]1 filed October 4,
2011; and (2) plaintiff’s Objection to Recommendations of the Magistrate [#96] filed
October 11, 2011. I overrule the objection, adopt the recommendation, and dismiss
plaintiff’s remaining claims in this lawsuit.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the

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“[#95]” 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.

recommendation to which objections have been filed, and have considered carefully the
recommendation, objections, and applicable caselaw. Moreover, 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,
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, plaintiff’s
objections are imponderous and without merit.2 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 magistrate judge’s Amended Recommendation on Plaintiff’s

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In particular, I note that nothing in plaintiff’s Motion for Court To Revisit the Complaint [#82],
filed July 12, 2011, warrants the relief therein requested. The bases for granting reconsideration are
extremely limited:
Grounds warranting a motion to reconsider include (1) an intervening
change in the controlling law, (2) new evidence previously unavailable,
and (3) the need to correct clear error or prevent manifest injustice.
Thus, a motion for reconsideration is appropriate where the court has
misapprehended the facts, a party's position, or the controlling law. It is
not appropriate to revisit issues already addressed or advance arguments
that could have been raised in prior briefing.
Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000) (citations omitted). Although
plaintiff claims he is now able to quantify his damages, nothing in his motion suggests that the substantive
facts underlying his previously dismissed claims were not available to him when he originally filed his
complaint. Plaintiff’s belated attempt to inject them into the case provides no proper basis to reconsider
the previous order of dismissal.

2

Motion for Court To Revisit the Complaint (Docket No. 82), Plaintiff’s Motion for
Defendants To Be Held Personally Accountable for Judgment When it Is
Rendered in the Plaintiff’s Favor (Docket No. 83) and Defendants’ Motion for
Summary Judgment (Docket No. 85) [#95] filed October 4, 2011, is APPROVED AND
ADOPTED as an order of this court;
2. That the objections stated by plaintiff in the Objection to Recommendations
of the Magistrate [#96] filed October 11, 2011, are OVERRULED;
3. That plaintiff’s Motion for Court To Revisit the Complaint [#82] filed July
12, 2011, is DENIED;
4. That Defendants’ Motion for Summary Judgment [#85] filed July 15, 2011,
is GRANTED;
5. That plaintiff’s Motion for Defendants To Be Held Personally Accountable
for Judgment When it is Rendered in the Plaintiff’s Favor [#83] filed July 12, 2011,
is DENIED AS MOOT;
6. That plaintiff’s remaining claims in this lawsuit are DISMISSED WITH
PREJUDICE;
7. That judgment SHALL ENTER as follows:
a. in favor of defendants, Devin Newth, Melissa Peck (identified in the caption as
“M. Peck”), Michelle Abney (identified in the caption as “Abney”), against plaintiff,
Russell M. Boles, on plaintiff’s claim that defendants retaliated against plaintiff for
exercise of his constitutional rights by damaging his personal property; provided, that
the judgment on this claim SHALL BE with prejudice;

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b. in favor of defendant, Chester Humphrey (identified in the caption as
“Humphrey, C.L.”), against plaintiff, Russell M. Boles, as to plaintiff’s Claim Two,
alleging denial of access to the courts; provided, that the judgment on this claim SHALL
BE with prejudice; and
c. in accordance with my Order Overruling Objections to and Adopting
Recommendation of the United States Magistrate Judge ¶ 4 at 3-4 [#47] filed March
17, 2010; provided, that the judgment on the claims resolved by this order SHALL BE
without prejudice;
8. That the Trial Preparation Conference, currently scheduled for Friday,
October 21, 2011, at 2:00 p.m., as well as the trial, currently scheduled to commence on
Monday, November 7, 2011, are VACATED; 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 October 12, 2011, at Denver, Colorado.
BY THE COURT:

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