Alley v. Franz et al

Filing 54

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge 53 is AFFIRMED and ADOPTED. ORDERED that Defendants Motion for Summary Judgment 47 is GRANTED, and this case is DISMISSED by Chief Judge Wiley Y. Daniel on 08/23/11.(jjh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Wiley Y. Daniel
Civil Action No. 09-cv-02713-WYD-BNB
ROSS ALLEY,
Plaintiff,
v.
BEVERLY DOWIS,
DR. J. G. FORTUNATO, and
DR. PAULA FRANZ,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on Defendants’ Motion for Summary Judgment
and Memorandum Brief in Support of Motion for Summary Judgment. Defendants seek
summary judgment as to Plaintiff’s pro se claims under 42 U.S.C. § 1983 alleging
deliberate indifference in connection with the denial of knee replacement surgery, the
decision not to provide him with hearing aids, and his treatment for Hepatitis C. The
motion was referred to Magistrate Judge Boland for a recommendation by Order of
Reference of February 2, 2010, and Memorandum of October 12, 2010.
Magistrate Judge Boland issued a Recommendation on May 2, 2011, which is
incorporated herein by reference. See 28 U.S.C. § 636(b)(1), FED. R. CIV. P. 72(b),
D.C.COLO.LCivR. 72.1. It is recommended therein that Defendants’ Motion for
Summary Judgment be granted. (Recommendation at 1, 17.)

Magistrate Judge Boland advised the parties that specific written objections were
due within fourteen (14) days after being served with a copy of the Recommendation.
(Recommendation at 17). Despite this advisement, no objections were filed to the
Recommendation.
No objections having been filed, I am vested with discretion to review the
Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that "[i]t does not appear that Congress intended to require district court review
of a magistrate's factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings"). Nonetheless, though not required to do
so, I review the Recommendation to "satisfy [my]self that there is no clear error on the
face of the record."1 See Fed. R. Civ. P. 72(b) Advisory Committee Notes.
Having reviewed the Recommendation, I am satisfied that there is no clear error
on the face of the record. I agree with Magistrate Judge Boland that Defendants are
entitled to summary judgment on the Eighth Amendment Claim because, while the
record demonstrates that Plaintiff’s knee condition was sufficiently serious to meet the
objective component of a deliberate indifference claim, he has now shown that any of
the Defendants were deliberately indifferent to his knee condition for the reasons stated
in the Recommendation. (Recommendation at 13-14.) Indeed, as stated in the
Recommendation, the knee surgery was precluded by Plaintiff’s immobility and weight

1

Note, this standard of review is something less than a "clearly erroneous or contrary to law"
standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review, Fed. R. Civ. P. 72(b).

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gain, not any deliberate indifference. (Id.) I also agree with the recommendation to
grant summary judgment as to the claims related to a hearing aid and treatment for
Hepatitis C since Plaintiff has not shown that these conditions are sufficiently serious or
that Defendants subjectively knew of and disregarded an excessive risk to his health.
(Id. at 15-17.) Finally, I agree that summary judgment is appropriate as to the
conspiracy claim since Plaintiff failed to establish the existence of any constitutional
violations. (Id. at 17.)
I also note as support for my ruling that, in addition to not filing objections to the
Recommendation, Plaintiff did not file a response to Defendants’ Motion for Summary
Judgment despite being ordered to do so by Magistrate Judge Boland. (See Minute
Order of October 12, 2010, ECF No. 50.) This means that the factual allegations stated
in Defendants’ summary judgment motion were deemed admitted.
I note that Plaintiff did submit a letter to the Court on October 25, 2010. This
letter, however, does not respond to the factual allegations and argument in the
summary judgment motion. Instead, it complains about alleged wrongdoing on part of
the Attorney General and Magistrate Judge Boland. Plaintiff was previously advised,
however, by Magistrate Judge Boland that ex parte letters to the Court such as this one
are prohibited and that a request for a court order must be made in the form of a motion.
(See Orders of September 9, 2010, ECF No. 41 and May 17, 2010, ECF No. 30). Thus,
Plaintiff was on notice that this letter (as well as other letters filed by him) was improper.

My review of the record shows that Plaintiff has chosen in this case not to comply
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with Court Orders or the Federal Rules of Civil Procedure regarding the filing of motions
and responses to motions. Pro se status “does not excuse the obligation of any litigant
to comply with the fundamental requirements” of the Federal Rules of Civil Procedure.
The granting of Defendants’ summary judgment motion is due solely to Plaintiff’s failure
to comply with these obligations, not to any bias of the Court.
Based upon the foregoing, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
May 2, 2011 (ECF No. 53) is AFFIRMED and ADOPTED. In accordance therewith, it is
ORDERED that Defendants’ Motion for Summary Judgment filed October 8,
2010 (ECF No. 47) is GRANTED, and this case is DISMISSED.
Dated: August 23, 2011
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Chief United States District Judge

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