Nasious v. Mueller et al

Filing 227

ORDER. The Recommendation of United States Magistrate Judge 224 filed8/12/2011, is APPROVED AND ADOPTED. Defendants Cathie Holst and Adrienne Jacobsons Motion To Dismiss 217 filed 7/29/2011, is GRANTED. Plaintiffs remaining claim under Title II of the Americans With Disabilities Act for prospective injunctive relief based on his photophobia is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Judgment SHALL ENTER on behalf of defendants, Cathie Holst and Adrienne Jacobs on, against plaintiff, John Nasious, on plaintiffs claim under Title II of the Americans With Disabilities Act for prospective injunctive relief based on his photophobia; provided, that the judgment as to this claim against these defendants shallbe w ithout prejudice. Judgment further SHALL ENTER on behalf of defendants, State of Colorado Office of the Governor Bill Ritter; Nurse Martha Mueller, Physician Health Partners; Dr. Barry Goldsmith, Physician Health Partners; Paula Frantz M.D. CMO, Col orado Dept. Of Corrections; Stephen Kreibs M.D. Physician, Health Partners Agent of Record; P.A. Brian Webster, Physician Health Partners (Ft Myers, Fl); PA Tejeender Singh, Physician Health Partners; Aristedes Zavaras, Executive Director CDOC; Jose ph Gary Fortunado D.O. Physician Health Partners; P.A. Joann Stock, Physician Health Partners; Nurse Nancy White, Physician Health Partners; Joseph Wermers, M.D., Physician Health Partners; CO St. Martin, Colorado Dept. of Corrections; CO Regina John son, Medical Department Colorado Dept. of Corrections; Captain Weingardt, Colorado Dept. of Corrections; Lt Mark Bold, Colorado Dept. of Corrections; Lt Jason Zwirn, Colorado Dept. of Corrections; Cathie Holst, Manager of Correctional Legal Services, ADA Coordinator, AIC CDOC; Adrienne Jacobson, LegalAssistant AIC/ADA Coordinator CDOC; Sgt. Becky Ball, Colorado Dept. of Corrections; Lt. Jimerson, Colorado Dept. of Corrections; Ms. Haverly Libraian [sic], Colorado Dept. of Corrections; and John D oe and Jane Doe, all in their individual and official capacities, against plaintiff, John Nasious, in accordance with my Order Concerning Recommendation of United States Magistrate Judge 201 filed June 29, 2011; provided, that the judgment as to the claims against these defendants shall be with prejudice. Defendants are AWARDED their costs. By Judge Robert E. Blackburn on 9/16/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 09-cv-01051-REB-KMT
JOHN NASIOUS,
Plaintiff,
v.
CATHIE HOLST, Manager of Correctional Legal Services, ADA Coordinator AIC CDOC,
and
ADRIENNE JACOBSON, Legal Assistant AIC/ADA Coordinator CDOC,
Defendants.

ORDER ADOPTING RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matter before me is the Recommendation of United States Magistrate
Judge [#224]1 filed August 12, 2011. No objections having been filed to the
recommendation, I review it only for plain error. See Morales-Fernandez v.
Immigration & Naturalization Service, 418 F.3d 1116, 1122 (10th Cir. 2005).2 Finding
no such error in the magistrate judge’s recommended disposition, I find and conclude
that the recommendation should be approved and adopted.

1

“[#224]” 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.
2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122. In addition, because plaintiff is proceeding pro se, I have construed her
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)).

THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#224] filed
August 12, 2011, is APPROVED AND ADOPTED as an order of this court;
2. That Defendants Cathie Holst and Adrienne Jacobson’s Motion To
Dismiss [#217] filed July 29, 2011, is GRANTED;
3. That plaintiff’s remaining claim under Title II of the Americans With Disabilities
Act for prospective injunctive relief based on his photophobia is DISMISSED WITHOUT
PREJUDICE for lack of subject matter jurisdiction;
4. That judgment SHALL ENTER on behalf of defendants, Cathie Holst and
Adrienne Jacobson, against plaintiff, John Nasious, on plaintiff’s claim under Title II of
the Americans With Disabilities Act for prospective injunctive relief based on his
photophobia; provided, that the judgment as to this claim against these defendants shall
be without prejudice;
5. That judgment further SHALL ENTER on behalf of defendants, State of
Colorado – Office of the Governor Bill Ritter; Nurse Martha Mueller, Physician Health
Partners; Dr. Barry Goldsmith, Physician Health Partners; Paula Frantz M.D. CMO,
Colorado Dept. Of Corrections; Stephen Kreibs M.D. – Physician, Health Partners
Agent of Record; P.A. Brian Webster, Physician Health Partners (Ft Myers, Fl); PA
Tejeender Singh, Physician Health Partners; Aristedes Zavaras, Executive Director
CDOC; Joseph Gary Fortunado D.O. Physician Health Partners; P.A. Joann Stock,
Physician Health Partners; Nurse Nancy White, Physician Health Partners; Joseph
Wermers, M.D., Physician Health Partners; CO St. Martin, Colorado Dept. of

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Corrections; CO Regina Johnson, Medical Department Colorado Dept. of Corrections;
Captain Weingardt, Colorado Dept. of Corrections; Lt Mark Bold, Colorado Dept. of
Corrections; Lt Jason Zwirn, Colorado Dept. of Corrections; Cathie Holst, Manager of
Correctional Legal Services, ADA Coordinator, AIC CDOC; Adrienne Jacobson, Legal
Assistant AIC/ADA Coordinator CDOC; Sgt. Becky Ball, Colorado Dept. of Corrections;
Lt. Jimerson, Colorado Dept. of Corrections; Ms. Haverly Libraian [sic], Colorado Dept.
of Corrections; and John Doe and Jane Doe, all in their individual and official capacities,
against plaintiff, John Nasious, in accordance with my Order Concerning
Recommendation of United States Magistrate Judge [#201] filed June 29, 2011;
provided, that the judgment as to the claims against these defendants shall be with
prejudice; and
6. 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 September 16, 2011, at Denver, Colorado.
BY THE COURT:

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