Mason v. Hartley et al

Filing 70

ORDER. The Recommendation of United States Magistrate Judge 31 is APPROVED AND ADOPTED. Defendants Motion To Dismiss Pursuant To FED. R. CIV. P. 12(b)(6) 20 filed 6/6/2012, is GRANTED in part and DENIED in part. Under FED. R. CIV. P. 12(b)(6), the plaintiffs claims against defendants Steve Hartley and J. Doe, Health Services Administrator, are DISMISSED with prejudice. The Recommendation of United States Magistrate Judge 49 filed 11/9/2011, is APPROVED and ADOPTED as an order of this court. Plaintiffs Motion for Substitution 41 filed 9/23/2011, is DENIED. By Judge Robert E. Blackburn on 2/28/2012.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-00578-REB-KLM
SCOTT MASON,
Plaintiff,
v.
STEVE HARTLEY, Warden, Fremont Correctional Facility,
MR. HUGHES, Commander, F.C.F. S.E.R.T.,
C/O FRANCIS, F.C.P. S.E.R.T., and
J. DOE, Health Services Administrator,
Defendants.

ORDER ADOPTING RECOMMENDATIONS OF
THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the defendants’ Motion To Dismiss
Pursuant To FED. R. CIV. P. 12(b)(6) [#20] filed June 6, 2011; (2) the Recommendation of
United States Magistrate Judge [#31] filed July 14, 2011; (3) the plaintiff’s Motion for
Substitution [#41] filed September 23, 2011; and (4) the Recommendation of United States
Magistrate Judge [#49] filed November 9, 2011. The plaintiff filed objections [#34 & #59] to the
recommendations. I overrule the objections, approve and adopt the recommendations, grant
the motion to dismiss in part, deny the motion to dismiss in part, and deny the motion for
substitution.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendations to which objections have been filed. I have considered carefully the
recommendations, objections, and applicable law.
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, 59596, 30 L.Ed.2d 652 (1972)). However, I have not acted as an advocate for the plaintiff.
The recommendations are detailed and well-reasoned. Contrastingly, the plaintiff’s
objections are imponderous and without merit.
The plaintiff is incarcerated in the Colorado Department of Corrections. His complaint
concerns allegations that the defendants violated his Eighth Amendment right against cruel and
unusual punishment. The magistrate judge recommends that the defendants’ motion to dismiss
be granted as to defendants, Steve Hartley and J. Doe, Health Services Administrator. The
magistrate judge concludes correctly that the allegations in the complaint do not indicate that it
might be possible for the plaintiff to show personal involvement of Steve Hartley or J. Doe in the
violations alleged. On the other hand, the magistrate judge concludes correctly that the
allegations in the complaint are sufficient to state claims against defendants, Mr. Hughes and
C/O Francis. I agree. The plaintiff’s arguments as stated in his objections [#34] do not
undermine the analysis of the magistrate judge.
In the second recommendation [#49], the magistrate judge recommends that the court
deny the plaintiff’s motion for substitution. In that motion, the plaintiff seeks to substitute Rene
Martinez as a defendant for the defendant currently designated as J. Doe, F.C.F., Health
Services Administrator. Appropriately, the magistrate judge recommends that this motion be
denied because, for the reasons stated in the earlier recommendation [#31], the allegations in
the plaintiff’s complaint are not sufficient to state a claim on which relief can be granted against
J.Doe, F.C.F., Health Services Administrator. The plaintiff’s arguments as stated in his
objections [#59] do not undermine the analysis of the magistrate judge.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#31] filed July 14,

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2011, is APPROVED and ADOPTED as an order of this court;
2. That the defendants’ Motion To Dismiss Pursuant To FED. R. CIV. P. 12(b)(6) [#20]
filed June 6, 2011, is GRANTED in part;
3. That under FED. R. CIV. P. 12(b)(6), the plaintiff’s claims against defendants Steve
Hartley and J. Doe, Health Services Administrator, are DISMISSED with prejudice;
4. That defendants Steve Hartley and J. Doe, Health Services Administrator, are
DROPPED from this action, and the caption shall be AMENDED accordingly;
5. That otherwise, the defendants’ Motion To Dismiss Pursuant To FED. R. CIV. P.
12(b)(6) [#20] filed June 6, 2011, is DENIED;
6. That the Recommendation of United States Magistrate Judge [#49] filed
November 9, 2011, is APPROVED and ADOPTED as an order of this court;
7. That the plaintiff’s Motion for Substitution [#41] filed September 23, 2011, is
DENIED.
Dated February 28, 2012, at Denver, Colorado.
BY THE COURT:

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