Bomprezzi v. Kaprivnikar

Filing 98

ORDER Amending 73 Order Adopting Recommendations of United States Magistrate Judge. Paragraph 6 on pages three and four of the Order Adopting Recommendations of United States Magistrate Judge [# 73 ] is AMENDED to read: "That the defendant 9;s Motion To Dismiss [# 44 ] filed May 14, 2012,is DENIED as to the plaintiff's Fourteenth Amendment substantive due process claim;". That paragraph 7 on page four of the Order Adopting Recommendations of United States Magistrate Judge [#[ 73]] is AMENDED to read: "That under FED. R. CIV. P. 12(b)(6), the defendant's Motion To Dismiss [# 44 ] filed May 14, 2012, is GRANTED as to the plaintiff's Thirteenth Amendment claim, the plaintiff's Eighth Amendment claim, and any remaining portion of the plaintiff's procedural due process claim, and those claims are DISMISSED. Otherwise, the Order Adopting Recommendations of United States Magistrate Judge [# 73 ] SHALL REMAIN in full force and effect. By Judge Robert E. Blackburn on 1/22/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-03344-REB-MEH

MEL BOMPREZZI,
Plaintiff,
v.
DR. JOAN KAPRIVNIKAR,
Defendant.

ORDER AMENDING ORDER ADOPTING
RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before the court sua sponte. On March 18, 2013, I entered an
order [#73]1 approving and adopting two recommendations of the magistrate judge.
One of those recommendations [#60] included a recommendation that the motion to
dismiss [#44] of the defendant, Dr. Kaprivnikar, be granted as to some claims, but
denied as to the substantive due process claim of the plaintiff.
Addressing the recommendation [#60] and the motion to dismiss [#44] in the
concluding paragraphs of my order [#73], I conflated the substantive due process and
procedural due process claims of Mr. Bomprezzi. As a result, I inadvertently and
unintentionally ordered that the motion to dismiss [#44] was granted as to the
substantive due process claim and denied as to the procedural due process claim.
1

“[#73]” 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.

Reviewing the recommendation [#60], my order [#73], and the other pertinent parts of
the record, it is clear that I intended to grant the motion to dismiss as to any remaining
procedural due process claim and deny the motion to dismiss as to the possible
substantive due process claim of the plaintiff.2 Under FED. R. CIV. P. 60(a), I enter this
order to amend and correct my previous order [#73].
THEREFORE, IT IS ORDERED as follows:
1. That under FED. R. CIV. P. 60(a), the Order Adopting Recommendations of
United States Magistrate Judge [#73] filed March 18, 2013, is AMENDED as stated in
this order;
2. That paragraph six (6) on pages three and four of the Order Adopting
Recommendations of United States Magistrate Judge [#73] filed March 18, 2013, is
AMENDED to read: “That the defendant’s Motion To Dismiss [#44] filed May 14, 2012,
is DENIED as to the plaintiff’s Fourteenth Amendment substantive due process claim;”
3. That paragraph seven (7) on page four of the Order Adopting
Recommendations of United States Magistrate Judge [#73] filed March 18, 2013, is
AMENDED to read: “That under FED. R. CIV. P. 12(b)(6), the defendant’s Motion To
Dismiss [#44] filed May 14, 2012, is GRANTED as to the plaintiff’s Thirteenth
Amendment claim, the plaintiff’s Eighth Amendment claim, and any remaining portion of
the plaintiff’s procedural due process claim, and those claims are DISMISSED;”

2

As noted in the recommendation [#60], the magistrate judge read a substantive due process
claim into the complaint, even though the plaintiff did not explicitly assert such a claim. This interpretation
of the complaint was made as part of the duty of the court to interpret liberally the pleadings of a pro se
party. Recommendation [#60], p. 4.

2

4. That otherwise, the Order Adopting Recommendations of United States
Magistrate Judge [#73] filed March 18, 2013, SHALL REMAIN in full force and effect.
Dated January 22, 2014, at Denver, Colorado.
BY THE COURT:

3