Lilly v. Hartley et al

Filing 66

ORDER. The Recommendation of United States Magistrate Judge 44 filed 7/21/2011, is APPROVED and ADOPTED. The plaintiffs objections 45 filed 8/1/2011, are OVERRULED. The defendants Motion To Dismiss 33 filed 5/27/2011, is GRANTED as to the p laintiffs Eighth Amendment claim. The plaintiffs Motion for Leave To File Amended Second Complaint 57 filed 9/29/2011, is GRANTED. The proposed amended complaint attached to the plaintiffs Motion for Leave To File Amended Second Complaint 57 fil ed 9/19/2011, is NOT ACCEPTED. On or before 4/15/2012, the plaintiff MAY FILE a second amended complaint. The Clerk of the Court is DIRECTED to place the above-captioned case on the list of cases for which the court seeks volunteer counsel. By Judge Robert E. Blackburn on 3/13/2012.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Case No. 10-cv-02738-REB-MEH
CURTIS L. LILLY,
Plaintiff,
v.
MR. JASON FASSLER, Correctional Officer, Fremont Correctional Facility, and
MR. ROBERT BEAUMONT, Correction Officer, Fremont Correctional Facility,
Defendants.

ORDER ADOPTING RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the defendants’ Motion To
Dismiss [#33]1 filed May 27, 2011; (2) the Recommendation of United States
Magistrate Judge [#44] filed July 21, 2011; and (3) the plaintiff’s Motion for Leave To
File Amended Second Complaint [#57] filed September 19, 2011. The plaintiff filed
objections [#45] to the recommendation. I overrule the objections, approve and adopt
the recommendation, grant the motion to dismiss, and grant the plaintiff’s motion to file
an amended complaint.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed. I have considered carefully the
recommendation, objections, and applicable caselaw.

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“[#33]” 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.

Because plaintiff is proceeding pro se, I have construed his pleadings and other
filings 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)). However, I have not
acted as an advocate for the plaintiff.
The recommendation is detailed and well-reasoned. Contrastingly, the plaintiff’s
objections are without merit.
The plaintiff, Curtis Lilly, is incarcerated in the Colorado Department of
Corrections. In his complaint [#12], Mr. Lilly alleges that he was injured on December 1,
2008, while working for the heating, ventilation, and air conditioning (HVAC) crew at the
Fremont Correctional Facility (FCF). The plaintiff alleges that he was ordered by
defendant Jason Fassler to repair a leak inside one of the air handlers at FCF. While
Mr. Lilly was inside the air handler, the fan to the unit was turned on. As a result, Mr.
Lilly was pulled into the unit and suffered serious injuries, including a depressed skull
fracture and a spinal injury. Complaint [#12], pp. In his complaint, Mr. Lilly alleges a
negligence claim and an Eighth Amendment claim.
The defendants’ motion to dismiss [#33] addresses only Mr. Lilly’s Eighth
Amendment claim. In his recommendation, the magistrate judge concludes that Mr.
Lilly’s allegations are sufficient to state a negligence claim but are not sufficient to state
an Eighth Amendment claim. Addressing the elements of Mr. Lilly’s Eighth Amendment
claim, the magistrate judge concludes that Mr. Lilly’s allegations are sufficient to state
an Eighth Amendment claim, except that Mr. Lilly has not alleged facts indicating that
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the defendants consciously disregarded a substantial risk of harm to Mr. Lilly. Absent
such allegations, the plaintiff’s complaint does not state a claim on which relief can be
granted based on the Eighth Amendment. The magistrate judge recommends that the
plaintiff be permitted to file an amended complaint. I agree with the magistrate judge’s
analysis and conclusions.
A proposed second amended complaint is attached to Mr. Lilly’s motion [#57] to
amend his complaint. This proposed amended complaint is more in the nature of a brief
addressing issues such as qualified immunity and personal participation. The court
directs that any amended complaint be filed on the on the court’s standard prisoner
complaint form for actions under 42 U.S.C. § 1983.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#44] filed
July 21, 2011, is APPROVED and ADOPTED as an order of this court;
2. That the plaintiff’s objections [#45] filed August 1, 2011, are OVERRULED;
3. That the defendants’ Motion To Dismiss [#33] filed May 27, 2011, is
GRANTED as to the plaintiff’s Eighth Amendment claim;
4. That the plaintiff’s Motion for Leave To File Amended Second Complaint
[#57] filed September 19, 2011, is GRANTED on the terms stated in this order;
5. That the proposed amended complaint attached to the plaintiff’s Motion for
Leave To File Amended Second Complaint [#57] filed September 19, 2011, is NOT
ACCEPTED as the operative complaint;
6. That on or before April 15, 2012, the plaintiff MAY FILE a second amended
complaint;
7. That any second amended complaint shall be written on the court’s standard
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prisoner complaint form for actions under 42 U.S.C. § 1983;
8. That the clerk of the court SHALL MAIL to plaintiff Curtis L. Lilly, at his
address of record, a copy of the court’s standard prisoner complaint form for actions
under 42 U.S.C. § 1983;
9. That, at the plaintiff’s discretion, the plaintiff may allege in his second
amended complaint the negligence claim asserted in his present complaint [#12], the
Eighth Amendment claim that is the subject of the present motion to dismiss, or both
such claims;
10. That the Clerk of the Court is DIRECTED to place the above-captioned case
on the list of cases for which the court seeks volunteer counsel.
Dated March 13, 2012, at Denver, Colorado.
BY THE COURT:

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