Ybanez v. Milyard et al

Filing 35

ORDER. The Recommendation of the United States Magistrate Judge, Doc. 33 , is GRANTED. All claims against the John Doe and Jane Doe defendants are dismissed without prejudice. Mr. Ybanezs Objection to the Scheduling Order 31 is DENIED. By Judge R. Brooke Jackson on 5/29/2012.(sahsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable R. Brooke Jackson

Civil Action No. 10-cv-2234-RBJ-MJW
NATHAN YBANEZ,
Plaintiff.
v.
WARDEN KEVIN MILYARD,
MARY COX-BERGMAN,
STEVEN MAY,
VARIOUS JOHN DOES, and
VARIOUS JANE DOES, all sued in their individual and official capacities.
Defendants.

ORDER
This matter comes before the Court on Magistrate Judge Watanabe’s March 19, 2011
“Recommendation that Claims against John and Jane Does be Dismissed without Prejudice”
[#33] and Mr. Ybanez’s “Written Objection to Magistrate Scheduling Order” [#29].
Facts
This is a pro se prisoner complaint regarding the policy or practice of handling inmate
mail at the Sterling Correctional Facility (“SCF”), an institution within the Colorado Department
of Corrections. The defendants named are (1) Kevin Milyard who was the warden of the SCF
when the actions complained of allegedly occurred; (2) Mary Cox-Bergman, the “Major of the
SCF Mail Room;” (3) Steven May, the acting supervisor of the SCF Mail Room; and (4) various
John and Jane Does. Mr. Ybanez seeks awards of money damages based upon allegations that
defendants are responsible for the destruction of two items of attorney mail in December 2008
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and January 2009; the destruction of a Christmas card sent to him by another attorney in
December 2008; and (3) a policy concerning rejected mail that was adopted in 2007.
Conclusions
Recommendation that the Claims Against John and Jane Does be Dismissed Without
Prejudice [#33].
Magistrate Judge Watanabe recommended that the claims asserted against the John Doe
and Jane Doe defendants be dismissed without prejudice based upon Mr. Ybanez’s failure to
identify or serve them and his failure to prosecute his claims against them. On December 20,
2011 Judge Watanabe issued an Order to Show Cause [#30], setting a date for a Show Cause
Hearing at which Mr. Ybanez was to directed to show cause as to why this case should not be
dismissed against the John Doe and Jane Doe defendants. The Show Cause Hearing took place
on March 19, 2012, and Mr. Ybanez was unable to identify any of the John and Jane Doe
defendants. Therefore, Magistrate Judge Watanabe issued a written of order recommending that
the claims asserted against the John Doe and Jane Doe defendants be dismissed without
prejudice pursuant to D.C. Colo. L. Civ. R. 41.1 and Fed. R. Civ. P. 4(m), 16(f), and 41(b).
The Recommendation advised the parties that specific written objections were due within
fourteen (14) days after being served with a copy of the Recommendation (#886). Despite this
advisement, no objections were filed by either party. “In the absence of timely objection, the
district court may review a magistrate . . . [judge’s] report under any standard it deems
appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citing 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”).

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The Court has reviewed all the relevant pleadings concerning the Recommendation.
Based on this review, the Court concludes that the Magistrate Judge’s analyses and
recommendations are correct, and that “there is no clear error on the face of the record.” Fed. R.
Civ. P. 72 advisory committee’s note. Therefore, the Court ADOPTS the Recommendation of
the United States Magistrate Judge as the findings and conclusions of this Court.
Written Objection to Magistrate Judge Scheduling Order [#29].
On December 30, 2011 Mr. Ybanez filed an objection to the scheduling order entered by
Magistrate Judge Watanabe on December 20, 2011 [#29]. Specifically, Mr. Ybanez objects to
being limited to only twenty-five written interrogatories per side, rather than twenty-five per
party. Id. at ¶1. Mr. Ybanez argues that this will give the defendants an unfair advantage,
because he is the only plaintiff, while there are three named defendants.
An order on a motion that is not dispositive of a claim or defense is reviewed for clear
error: “the district judge in the case must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to the law.” Fed. R. Civ. P. 72(a). When
reviewing non-dispositive motions “district courts review such orders under a ‘clearly erroneous
or contrary to law’ standard of review.” Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458,
1462 (10th Cir. 1988) (citing 28 U.S.C. § 636(b)(1)(A)).
The Court is given wide discretion to enlarge, or place limitation upon, the number of
interrogatories permitted in any given case. See Fed. R. Civ. P. 33 (a)(1). Magistrate Judge
Watanabe’s limitation of twenty-five interrogatories per side is not clearly erroneous or contrary
to law. I note as well that the scheduling order permits 25 requests for production per side, 25
requests for admission per side, and five depositions per side plus experts. I realize that Mr.
Ybanez may not have the resources to conduct the depositions permitted. However, he has not

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shown that the limits placed on interrogatories have, in fact, unfairly interfered with his ability to
obtain necessary and appropriate discovery. Therefore, Mr. Ybanez’s objection is denied.
Order
1. The Recommendation of the United States Magistrate Judge, Doc. [#33], is
GRANTED. All claims against the John Doe and Jane Doe defendants are dismissed
without prejudice.
2. Mr. Ybanez’s Objection to the Scheduling Order [#31] is DENIED.
DATED this 29th day of May, 2012.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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