Cox v. Pastelletti et al

Filing 67

ORDER adopting 40 Recommendations of the Magistrate Judge. Defendants' Motion To Dismiss [# 27 ] is granted in part and denied in part. The defendant designated as Nurse Doug of (DRDC) (CDOC) is DROPPED from this case, and the caption is AMENDED accordingly. By Judge Robert E. Blackburn on 3/12/2013. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-02554-REB-MEH
RONALD M. COX,
Plaintiff,
v.
NURSE DOUG OF (DRDC)(CDOC),
(DRDC) WARDEN ZAVISLAN (CDOC), and
(DRCD) CAPTAIN REAUX (CDOC),
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 [#27]1 filed May 21, 2012; and (2) the corresponding Recommendation of
United States Magistrate Judge [#40] filed July 30, 2012. I approve and adopt the
recommendation. Accordingly, I grant the motion to dismiss in part and deny it in part.
The plaintiff is acting pro se. Therefore, I construe his filings generously and with
the leniency due pro se litigants, 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. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)).
The plaintiff did not file objections to the recommendation. Thus, I review it only
1

“[#27]” 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.

for plain error. See Morales-Fernandez v. Immigration & Naturalization Service,
418 F.3d 1116, 1122 (10th Cir. 2005).2 Finding no error, much less plain error, in the
disposition recommended by the magistrate judge, I find and conclude that the
recommendation should be approved and adopted as an order of this court.
In his compliant the plaintiff Ronald Cox alleges that the defendants denied him
proper medical care in violation of his right against cruel and unusual punishment under
the Eighth amendment. In a claim designated as Claim 1(b), Mr. Cox asserts that he
was subjected to cruel and unusual punishment by defendant Nurse Doug when
Mr. Cox was denied timely medical treatment on the night he inadvertently ingested
razor blades found in his prison food. In Claim 2, Mr. Cox asserts two sub-claims. In
Claim 2(a), Mr. Cox alleges that defendants Captain Reaux and Warden Zavislan
inflicted cruel and unusual punishment on Mr. Cox by placing Mr. Cox in a dry cell as
part of his treatment. In claim 2(b), Mr. Cox alleges that defendants Captain Reaux and
Warden Zavislan inflicted cruel and unusual punishment on Mr. Cox by denying Mr. Cox
previously prescribed medical treatment to treat his inadvertent ingestion of razor
blades. All other claims and defendants were dismissed previously.
After a thorough analysis, the magistrate judge recommends that the motion to
dismiss be granted as to Claim 1(b) because Nurse Doug is entitled to qualified
immunity. Additionally, the magistrate judge recommends that the motion to dismiss be
granted as to Claim 2(a) because Captain Reaux and Warden Zavislan are entitled to
qualified immunity as to this claim. Finally, the magistrate judge recommends that the
motion to dismiss be denied as to claim 2(b) because Captain Reaux and Warden

2

This standard pertains even though plaintiff is proceeding pro se in this matter. MoralesFernandez, 418 F.3d at 1122.

2

Zavislan are not entitled to qualified immunity as to this claim. I agree with the analysis
and conclusions of the magistrate judge.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#40] filed
July 30, 2012, is APPROVED AND ADOPTED as an order of this court;
2. That the Defendants’ Motion To Dismiss [#27] filed May 21, 2012, is
DENIED as to the plaintiff’s claim, designated as claim 2(b), alleging that Captain Reaux
and Warden Zavislan violated the plaintiff’s Eight Amendment rights by denying the
plaintiff previously prescribed medical treatment to treat to his inadvertent ingestion of
razor blades;
3. That otherwise, the Defendants’ Motion To Dismiss [#27] filed May 21,
2012, is GRANTED as to all other pending claims; and
4. That the defendant designated as “Nurse Doug of (DRDC) (CDOC)” is
DROPPED from this case, and the caption is AMENDED accordingly.
Dated March 12, 2013 at Denver, Colorado.
BY THE COURT:

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