Davis v. Zavaras et al

Filing 45

ORDER. The Recommendation of United States Magistrate Judge 34 filed 12/02/2009, is APPROVED AND ADOPTED as an order of this court. The Defendants Motion To Dismiss and Memorandum Brief in Support of Motion To Dismiss 19 filed 06/01/2009, is GRA NTED in part. Under Eleventh Amendment to the United States Constitution and FED. R. CIV. P. 12(b)(1), all claims against the Colorado Department of Corrections and all claims asserted against the individual defendants in their official capacities a nd seeking retroactive monetary relief are DISMISSED. Under 42 U.S.C. § 1997e(e) and FED. R. CIV. P. 12(b)(6), Claim One is DISMISSED to the extent the plaintiff seeks compensatory damages in Claim One. Under FED. R. CIV. P. 12(b)(6), Claim Two is DISMISSED.Under FED. R. CIV. P. 12(b)(6), Claim Three is DISMISSED as to the defendant, Major William Brunell. Under FED. R. CIV. P. 12(b)(6), Claim Four is DISMISSED to the extent the plaintiff is challenging his parole eligibility, and Claim Fo ur is DISMISSED WITHOUT PREJUDICE. That otherwise, the Defendants Motion To Dismiss and Memorandum Brief in Support of Motion To Dismiss 19 filed 06/01/2009 is DENIED. The Recommendation of United States Magistrate Judge 35 filed 12/02/2009, is APPROVED AND ADOPTED as an order of this court. Plaintiffs Motion for Immediate Temporary Injunction 22 filed 06/22/2009, is DENIED. By Judge Robert E. Blackburn on 02/19/2010.(sah, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 09-cv-00266-REB-BNB GLENN DAVIS, Plaintiff, v. ARISTEDES ZAVARAS, Director CDOC, COLORADO DEPARTMENT OF CORRECTIONS, JIM MOORE, Offender Services, LT. PIPER, DOC Employee, Limon, CO MAJOR WILLIAM BRUNELL, CDOC Employee, Buena Vista, CO, JAMES LANDER, CDOC Mental Health Employee, Canon City, CO, and BURL McCULLAR, SOTMP Program Manager, CDOC Mental Health Employee, Canon City, CO, Defendants. ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Blackburn, J. This matter is before me on the following: (1) Defendants' Motion To Dismiss and Memorandum Brief in Support of Motion To Dismiss [#19]1 filed June 1, 2009; (2) the plaintiff's Motion for Immediate Temporary Injunction [#22] filed June 22, 2009; (3) the Recommendation of United States Magistrate Judge [#34] filed December 2, 2009; and (4) the Recommendation of United States Magistrate Judge [#35] filed December 2, 2009. I grant the motion to dismiss in part and deny it in part, I deny the motion for temporary injunction, and I approve and adopt both "[#19]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order. 1 recommendations. After the magistrate judge filed his recommendations on December 2, 2009, the plaintiff filed two motions [#38 & #43] seeking extensions of time to file objections to the recommendations. Both motions were granted, and the plaintiff's final extension of time expired on February 12, 2010. There have been no filings in this case since January 20, 2010, when the magistrate judge granted the plaintiff's second motion for extension of time. The plaintiff has had an ample opportunity to file objections to the recommendations, but he has not done so. Therefore, I review the recommendation only for plain error. See Morales-Fernandez v. Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2 I have considered carefully the recommendation and the applicable case law. The recommendation is detailed and well-reasoned. Finding no error, much less plain 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 Recommendation of United States Magistrate Judge [#34] filed December 2, 2009, is APPROVED AND ADOPTED as an order of this court; 2. That the Defendants' Motion To Dismiss and Memorandum Brief in Support of Motion To Dismiss [#19] filed June 1, 2009, is GRANTED in part; 3. That under Eleventh Amendment to the United States Constitution and FED. R. CIV. P. 12(b)(1), all claims against the Colorado Department of Corrections and all This standard pertains even though plaintiff is proceeding pro se. Morales-Fernandez, 418 F.3d at 1122. 2 2 claims asserted against the individual defendants in their official capacities and seeking retroactive monetary relief are DISMISSED; 4. That under 42 U.S.C. 1997e(e) and FED. R. CIV. P. 12(b)(6), Claim One is DISMISSED to the extent the plaintiff seeks compensatory damages in Claim One; 5. That under FED. R. CIV. P. 12(b)(6), Claim Two is DISMISSED; 6. That under FED. R. CIV. P. 12(b)(6), Claim Three is DISMISSED as to the defendant, Major William Brunell; 7. That under FED. R. CIV. P. 12(b)(6), Claim Four is DISMISSED to the extent the plaintiff is challenging his parole eligibility, and Claim Four is DISMISSED WITHOUT PREJUDICE to the extent the plaintiff is seeking to shorten the duration of his confinement through release on parole; 8. That otherwise, the Defendants' Motion To Dismiss and Memorandum Brief in Support of Motion To Dismiss [#19] filed June 1, 2009, is DENIED; 9. That the Recommendation of United States Magistrate Judge [#35] filed December 2, 2009, is APPROVED AND ADOPTED as an order of this court; 10. That the plaintiff's Motion for Immediate Temporary Injunction [#22] filed June 22, 2009, is DENIED. Dated February 19, 2010, at Denver, Colorado. BY THE COURT: 3

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