Fresquez v. Minks et al

Filing 136

ORDER ADOPTING 130 RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE; the objections to the recommendation stated in plaintiff's paper 132 are overruled; Jefferson County Sheriff Defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P . 12(b)(1) and 12(b)(6) 54 is GRANTED; CHM Defendants' Combined Motion and Brief to Dismiss Second Amended Prisoner's Complaint 80 is GRANTED; all claims against all defendants, as alleged in the plaintiff's Second Amended Prisoner 's Complaint 17 , are DISMISSED; Motion for Leave to Amend Second Amended Prisoners [sic] Complaint 85 is DENIED; JUDGMENT SHALL ENTER in favor of each of the defendants against the plaintiff; defendants are AWARDED their costs to be taxed by the clerk of the court. By Judge Robert E. Blackburn on 3/19/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-02712-REB-KMT
LEROY DAMASIO FRESQUEZ,
Plaintiff,
v.
SHERIFF TED MINKS,
MICHAEL FISH, Detention Service Manager,
JOHN DOE (CAPTAIN), March 5, 2010,
LT. MARTINALLI,
LT. G. GITTIN,
LT. J. LUCAS,
ADMINISTRATIVE SGT. RENFRO,
SGT. TROY BETKA,
SGT. SCOTT HAPP,
SGT. STEVEN WYGANT,
OFFICER KATHRINE FEROE,
DEPUTY SHERIFF CRUMBAKER,
DEPUTY SHERIFF RYAN VIERS,
DEPUTY SHERIFF DUSTIN DYELING,
DEPUTY SHERIFF ANTHONY KOTRIS,
DEPUTY SHERIFF DONALD SPRINGFIELD,
DEPUTY SHERIFF HOLLEY,
DEPUTY SHERIFF JAMES GELEUDE,
DEPUTY SHERIFF JASON RICHARDSON,
DEPUTY SHERIFF REID PERRY,
DEPUTY SHERIFF WILLIAM BOHM,
DEPUTY SHERIFF ERIK BOUGHAM,
DEPUTY SHERIFF HERBERT LONGSHORE,
DEPUTY SHERIFF #1958 (Name Unknown),
COUNSELOR MIKE COLLINS,
COUNSELOR SUPERVISOR DEBRA ELUDO,
CORRECTIONAL HEALTHCARE MANAGEMENT,
CLAUDIA VAN BUREN/HSA,
RAYMOND HERR, Responsible Physician,
TRACY HAINES, LPN, and
KATHERINE BECERRA, RN,
Defendants.

ORDER ADOPTING RECOMMENDATIONS OF THE
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) Jefferson County Sheriff
Defendants’ Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)
[#54]1 filed May 10, 2012; (2) CHM Defendants’ Combined Motion and Brief to
Dismiss Second Amended Prisoner’s Complaint [#80] filed June 15, 2012; (3)
plaintiff’s Motion for Leave to Amend – Second Amended Prisoners [sic] Complaint
[#85] filed June 21, 2012; and (4) the corresponding Recommendation of United
States Magistrate Judge [#130] filed February 6, 2013. The plaintiff filed objections
[#132] to the recommendation. I overrule the objections, approve and adopt the
recommendation, grant the motions to dismiss, and deny the motion to amend.
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 (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)).
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendations to which the plaintiff objects. I have considered carefully the
recommendations, the objections, and the applicable case law.
The plaintiff, Leroy Damasio Frewquez, is an inmate in the Colorado Department
of Corrections. The allegations in his complaint concern incidents he claims took place

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“[#54]” 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.

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when he was incarcerated in the Jefferson County Jail. In the recommendation [#54],
the magistrate judge analyzes thoroughly the allegations in the plaintiff’s operative
complaint [#17] and applies correctly the standards applicable to motions to dismiss.
Concurrently, the magistrate judge analyzes in detail the allegations in the plaintiff’s
proposed third amended complaint. Based on this analysis, the magistrate judge
recommends that the plaintiff’s motion to amend his complaint be denied. I have
reviewed the plaintiff’s many objections to the recommendation. The plaintiff’s
objections do not show that the recommendation of the magistrate judge is incorrect
factually or legally. I conclude that the analysis, conclusions, and recommendations of
the magistrate judge are correct and that the plaintiff’s objections must be overruled.
By granting the two motions to dismiss, I resolve all claims against all named
defendants in this case, except for two defendants who are named as “John Doe” or
“Unknown.” Nothing in the record indicates that the plaintiff has identified these
defendants or served them with a summons and complaint. For the same reasons the
allegations in the plaintiff’s complaint are not sufficient to state a claim against the
named defendants, those allegations are not sufficient to state a claim against the
unnamed defendants. Under 28 U.S.C. § 1915(e)(2)(B), I dismiss the claims against
the unnamed defendants for failure to state a claim on which relief can be granted.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#130] filed
February 6, 2013, is APPROVED and ADOPTED as an order of this court;
2. That the objections to the recommendation stated in plaintiff’s paper [#132]
are overruled;

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3. That the Jefferson County Sheriff Defendants’ Motion to Dismiss
Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [#54] filed May 10, 2012, is
GRANTED;
4. That the CHM Defendants’ Combined Motion and Brief to Dismiss
Second Amended Prisoner’s Complaint [#80] filed June 15, 2012, is GRANTED;
5. That under 28 U.S.C. § 1915(e)(2)(B), I dismiss the claims against the
unnamed defendants for failure to state a claim on which relief can be granted;
6. That under FED. R. CIV. P. 12(b)(6), all claims against all defendants, as
alleged in the plaintiff’s Second Amended Prisoner’s Complaint [#17], are
DISMISSED;
7. That the plaintiff’s Motion for Leave to Amend – Second Amended
Prisoners [sic] Complaint [#85] filed June 21, 2012, is DENIED;
8. That under 28 U.S.C. § 1915(a)(3), I certify that any appeal from the
recommendation [#130] and this order would not be taken in good faith and, therefore,
any appeal from the recommendation and this order may not be taken in forma
pauperis;
9. That JUDGMENT SHALL ENTER in favor of each of the defendants against
the plaintiff, Leroy Damasio Fresquez;
10. That the defendants are AWARDED their costs to be taxed by the clerk of
the court pursuant to Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated March 19, 2013, at Denver, Colorado.
BY THE COURT:

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