Meyer v. Ferguson et al

Filing 85

ORDER accepting 74 Recommendation of United States Magistrate Judge. Defendant Correctional Health Partners' 34 Motion to Dismiss Plaintiff's Amended Complaint is granted. The 40 Motion to Dismiss Plaintiffs Prisoner Complaint (Doc. # 11) is granted in part and denied in part. The motion is denied as to Plaintiff's claim for monetary damages against defendants Meiggs and Ferguson. Plaintiff's 51 Motion for Leave to File an Amended Complaint is granted in part and denie d in part. The motion is granted as to plaintiff's proposed allegations against defendants Meiggs and Ferguson and denied in all other respects. Plaintiff shall file a second amended complaint containing only the allegations exactly as they appe ar in Docket No. 51 1 and 4. Plaintiff's 54 Order to Show Cause for a Preliminary Injunction is denied. All claims against defendant Baelin are dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m) for lack of service. By Judge Philip A. Brimmer on 6/9/11.(mnf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 10-cv-02302-PAB-KMT
JOHN M. MEYER, JR.,
Plaintiff,
v.
MR. SINGH (Individual and Official Capacity) DRDC Medical Doctor,
MR. FERGUSON (Individual and Official Capacity) Sgt., DRDC Infirmary,
McMILLIN (Individual and Official Capacity) Sgt., CTCF CH 3,
MS. SHOEMAKER (Individual and Official Capacity) Director Medical, CTCF,
MR. MEIGGS (Individual and Official Capacity) Intake Sgt., CTCF,
K. MITCHELL (Individual and Official Capacity) Physician’s Assistant (PA),
MR. HIEDENTHAUL (Individual and Official Capacity) Acting Lt., CH 3,
BETTY STOCKMANN (Individual and Official Capacity) Acting Reg. Nurse,
JOHN DOE 1 (Individual and Official Capacity) Correctional Officer, CH 4,
JOHN DOE 2 (Individual and Official Capacity) C/O, CTCF Reception,
CORRECTIONAL HEALTH PARTNERS (Individual and Official Capacity), Provider,
MS. BAELIN (Individual and Official Capacity) Acting Nurse, DRDC,
MS. GOODWIN (Individual and Official Capacity) Acting Nurse, DRDC,
DR. DARROW (Individual and Official Capacity) Medical Doctor, CTCF, and
MS. HOEKSTRA (Individual and Official Capacity) Physician’s Assistant,
Defendants.
_____________________________________________________________________
ORDER ACCEPTING MAGISTRATE JUDGE’S RECOMMENDATION
_____________________________________________________________________
This matter is before the Court on the Recommendation of United States
Magistrate Judge Kathleen M. Tafoya filed on April 27, 2011 [Docket No. 74]. The
Recommendation states that objections to the Recommendation must be filed within
fourteen days after its service on the parties. See also 28 U.S.C. § 636(b)(1)(C). The
Recommendation was served on April 27, 2011. No party has objected to the
Recommendation.

In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. Summers v. Utah, 927 F.2d
1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“[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”). In this matter, I have reviewed the Recommendation to
satisfy myself that there is “no clear error on the face of the record.”1 See Fed. R. Civ.
P. 72(b), Advisory Committee Notes. Based on this review, I have concluded that the
Recommendation is a correct application of the facts and the law. Accordingly, it is
ORDERED as follows:
1. The Recommendation of United States Magistrate Judge [Docket No. 74] is
ACCEPTED.
2. Defendant Correctional Health Partners’ Motion to Dismiss Plaintiff’s
Amended Complaint [Docket No. 34] is GRANTED.
3. The Motion to Dismiss Plaintiff’s Prisoner Complaint (Doc. #11) filed by
defendants Singh, Ferguson, McMillan, Shoemaker, Meiggs, Mitchell, Heidenthal,
Stockman, Goodwin, and Hoekstra [Docket No. 40] is GRANTED IN PART and
DENIED IN PART. The motion is denied as to Plaintiff’s claim for monetary damages
against defendants Meiggs and Ferguson and granted in all other respects.

1

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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4. Plaintiff’s Motion for Leave to File an Amended Complaint [Docket No. 51] is
GRANTED IN PART and DENIED IN PART. The motion is granted as to plaintiff’s
proposed allegations against defendants Meiggs and Ferguson and denied in all other
respects. Plaintiff shall file a second amended complaint containing only the allegations
exactly as they appear in Docket No. 51 ¶¶ 1 and 4.
5. Plaintiff’s “Order to Show Cause for a Preliminary Injunction” [Docket No. 54]
is DENIED.
6. All claims against defendant Baelin are dismissed without prejudice pursuant
to Fed. R. Civ. P. 4(m) for lack of service.

DATED June 9, 2011.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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